THE  GOVERNMENTS  OF 
FRANCE,  ITALY,  AND  GERMANY 


BY 


A.  LAWKENCE  LOWELL,  LL.D.,  PH.D. 

President  of  Harvard  University 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

LONDON:   HUMPHREY  MILFORD 
OXFORD  UNIVERSITY  PRESS 

1914 


COPYRIGHT,   1896,  1914,  BY  A.  LAWRENCE  LOWELL 


PREFACE 

THIS  volume  is  an  abridgment  of  the  author's 
Governments  and  Parties  in  Continental  Europe, 
published  in  1897.  It  has  been  prepared  in  order 
that  certain  portions  of  the  latter,  particularly  those 
dealing  with  the  framework  of  government  in  France, 
Italy  and  Germany,  may  be  more  easily  used  in  college 
classes. 

Some  changes  have  been  made  in  the  text,  but  only 
where  the  legislation  of  the  last  seventeen  years  has 
changed  the  actual  machinery  of  government.  Matters 
of  opinion  are  left  as  they  were  in  the  original  edition. 


502123 


CONTENTS 


CHAPTER  I 

FRANCE  :   INSTITUTIONS 

PAOB 

Origin  and  nature  of  parliamentary  government  in  England      .        •  2 

The  system  imperfectly  copied  on  the  Continent  6 

The  French  constitutional  laws           .......  7 

History  of  their  creation 8 

The  method  of  amendment 12 

Their  legal  and  moral  effect    .......  13 

The  Chamber  of  Deputies 14 

The  method  of  election,  scrutin  de  liste  and  scrutin  d'arrondisse- 

ment 15 

The  Chamber  a  tumultuous  body 18 

The  Senate 19 

Its  functions  and  actual  influence 21 

The  ministers  as  a  rule  not  responsible  to  it    .         .        .        .  22 

The  National  Assembly      .         .         . 26 

The  President  of  the  Republic 26 

His  functions       ..........  27 

His  powers  really  exercised  by  responsible  ministers        .        .  28 

The  Council  of  State 30 

The  ministers          ..........  32 

Their  responsibility  to  the  Chamber  of  Deputies         .         .         .33 
Their  enormous  power  (which  is  due  to  the  four  following  mat- 
ters)       33 

The  paternal  nature  of  the  government       ......  34 

The  centralization  of  local  government  .         .         .                *\         .  36 

The  department,  with  its  prefect  and  general  council          .         .  36 

The  arrondissement  and  the  canton          .....  40 

The  commune,  with  its  mayor  and  communal  council          *        .  40 

Paris  and  Lyons 42 

The  legislative  powers  of  the  executive      ......  43 

Ordinances  and  appropriations 44 


CONTENTS  v 

The  judicial  powers  of  the  executive 47 

Difference  between  English  and  French  history       ...  47 
In  England  the  royal  power  grew  early  and  took  a  judicial 

form         ..........  48 

In  France  it  developed  late  and  took  an  administrative  form  51 

Effect  of  the  doctrine  of  the  separation  of  powers  ...  54 
Questions  of  the  legality  of  official  acts  withdrawn  from  the 

ordinary  courts         ........  55 

The  administrative  courts  and  the  court  of  conflicts          .  57 

The  state  of  siege 63 

Effect  of  the  French  system  on  the  position  of  the  ministers           .  64 
Note  on  Gneist's  views  on  English  and  French  history       .         .         .65 

CHAPTER  II 

FRANCE  :   PARTIES 

The  influence  of  parties  in  popular  government     ....         69 

The  parliamentary  system  normally  produces  two  parties          .         .     70 

It  cannot  work  well  otherwise          .         .         .         .  '  .         72 

In  France  there  are  many  parties  or  groups 74 

Causes  of  the  subdivision  of  parties 76 

Lack  of  a  political  consensus       .......     76 

Theoretical  character  of  French  political  opinions  .         .         .         81 
Lack  of  the  habit  of  political  organization  .         .         .         .82 

The  election  of  the  deputies  by  majority  vote          ...         84 
The  system  of  committees  in  the  Chambers        .         .         .         .87 

This  undermines  the  authority  of  the  cabinet  and  its  ability 

to  hold  the  majority  together 90 

The  use  of  interpellations 93 

This  has  a  similar  effect .94 

It  is  due  to  jealousy  of  the  ministers 100 

Results  of  the  subdivision  of  parties 103 

A  change  of  ministry  does  not  mean  change  of  party          .         .  103 
The  cabinets  short-lived  .......       104 

As  a  rule  they  are  coalitions  and  therefore  weak  .  .  .105 
They  must  confer  favors  on  the  deputies  to  win  votes  .  .  106 
The  deputies  in  turn  must  curry  favor  with  the  local  nominating 

committees  and  the  constituents 108 

Prospects  of  the  Republic 113 

Since  the  Revolution  there  has  been  no  change  of  the  party  in 

power  without  a  revolution      .         .         .         .         .        ,         .114 
Possible  organic  changes 117 


vi  CONTENTS 

CHAPTER  III 

ITALY  :   INSTITUTIONS 

The  formation  of  the  kingdom 120 

The  Statute 122 

The  King 126 

The  ministers          ..........       127 

The  Senate 128 

The  Chamber  of  Deputies 130 

The  franchise,  the  method  of  election,  etc 131 

The  administrative  system      ........      135 

The  ordinance  power          ........  139 

The  civil  service      .........       140 

Local  government      ..........  142 

The  judicial  system         .........       144 

The  courts  and  the  officials 145 

Administrative  law  and  the  administrative  courts  .         .         .       147 
Weakness  of  the  judicial  system        ....          .        .  150 

The  church 152 

The  doctrine  of  a  free  church  in  a  free  state       ....  153 

The  monastic  orders        ........       155 

The  Pope,  and  the  law  of  the  Papal  Guarantees          .        .         .  157 
Embarrassing  situation  of  the  Vatican    .....       159 

CHAPTER  IV 
GERMANY:  THE  STRUCTURE  OF  THE  EMPIRE 

The  Holy  Roman  Empire  ...  ....  164 

The  growth  of  Prussia 165 

The  Germanic  Confederation  and  the  Diet 166 

The  failure  of  the  Liberal  attempt  at  union  in  1848-49          .        .168 

Bismarck  and  the  war  of  1866 171 

The  North  German  Confederation  and  the  Empire         .         .         .       172 

The  constitution 174 

Nature  of  the  federal  union    .         .         .         .        .        .        .         .175 

Legislative  centralization  and  executive  decentralization    .         .  175 
Inequality  of  rights  among  the  members         ....       178 

The  privileges  of  Prussia 178 

The  privileges  of  the  other  states     .....       181 

The  Reichstag  :  its  composition         .......  184 

Its  powers 188 


CONTENTS  vii 

The  Bundesrath  :  its  composition 191 

Its  character  and  the  position  of  the  members        .        .        .  194 

Its  internal  organization      ........  197 

Its  powers  and  privileges         .......  199 

Its  actual  influence 204 

The  Emperor 205 

Interlacing  of  his  powers  as  Emperor  and  as  King  of  Prussia  .  207 

The  Chancellor 208 

He  is  not  responsible  to  the  Reichstag 210 

His  functions  and  substitutes 211 

The  judicial  system  :  The  Reichsgericht 213 

Power  of  the  courts  to  hold  statutes  unconstitutional  .  .  214 

General  character  of  the  federal  system 216 


THE  GOVERNMENTS  OF 
FRANCE,  ITALY,  AND  GERMANY 


FRANCE 


THE  GOVERNMENTS  OF 
FRANCE,  ITALY,  AND  GERMANY 


CHAPTER  I. 

FRANCE  :    INSTITUTIONS. 

IN  order  to  understand  the  government  of  a  country 
it  is  not  enough  to  know  the  bare  structure  of  its  insti- 
tutions. It  is  necessary  to  follow  the  course  of  politics ; 
to  inquire  how  far  the  various  public  bodies  exercise  the 
authority  legally  vested  in  them  ;  and  to  try  to  discover 
the  real  sources  of  power.  It  is  necessary,  in  short,  to 
study  the  actual  working  of  the  system  ;  and  although 
this  depends  chiefly  upon  the  character,  the  habits,  and 
the  traditions  of  the  people,  it  is  also  influenced  in  no 
small  measure  by  details,  like  the  method  of  voting,  the 
procedure  in  the  legislative  chambers,  and  other  mat- 
ters, that  are  too  often  overlooked  on  account  of  their 
apparent  insignificance.  Now  in  several  of  the  states 
on  the  Continent  of  Europe  the  main  features  of  repre- 
sentative government  have  been  copied  directly  or  indi- 
rectly from  English  models,  while  the  details  have  grown 
up  of  themselves,  or  are  a  survival  from  earlier  tradi- 
tion. It  is  not  surprising,  therefore,  that  the  two  are 


:  .••FRANCE. 


more  or  less  inconsistent  with  each  other,  and  that  this 
want  of  harmony  has  had  a  pronounced  effect  on  public 
life. 

Although  most  people  to-day  are  familiar  with  the 
Parliament-  parliamentary  system  of  government  as  it  has 
menf°inern"  developed  in  England,  it  may  not  be  out  of 
place  to  give  a  brief  description  of  it  here  on 
account  of  the  profound  influence  it  has  had  in  other 
countries. 

The  Middle  Ages  gave  birth  to  two  political  ideas. 
Thft  first  of  these  was  a  division  of  the  people  into 
Sgparate  classes  prostates,  each  ojjvhkK  had  independr> 
enjfjwlitical  functions  of  its  own.  The  second  was 
representative  government^  or  the  election  —  by  those 
estates  whosajmembers  were  too  numerous  to  assemble 
in  a  body- —  of  deputies  an fo prized  to  jnej^togather 
and_^cJLJeg-4he^wh6le  estate.  The  number  of  these 
estates,  and  the  number  of  separate  chambers  in  which 
their  representatives  sat,  varied  in  the  different  coun- 
tries of  Europe ; l  but  it  so  happened  that  in  England 
all  the  political  power  of  the  estates  became  in  time 
vested  in  two  chambers.2  One  of  them,  the  House  of 
Lords,  contained  the  whole  body  of  peers,  who  were  the 


1  Thus  in  France,  and  in  most  continental  countries,  there  were  three, 
while  in  Sweden  there  were  four  :  the  clergy,  the  nobles,  the  cities,  and 
the  peasants.    The  existence  of  only  two  Houses  in  England  might  almost 
be  called  an  accident.     (Cf.  Freeman,  Growth  of  the  English  Constitution, 
p.  93.) 

2  In  1664  Convocation,  which  was  the  ecclesiastical  chamber,  discon- 
tinued the  practice  of  voting  separate  taxes  on  the  clergy,  and  thus  the 
clergy  definitely  ceased  to  be  an  estate  of   the  realm.     (See  Hallam, 
Const.  Hist,  of  England,  chap,  xvi.) 


ORIGIN  OF  PARLIAMENTARY  GOVERNMENT. 

successors  of  the  great  feudal  vassals  of  the  Crown  ; 
while  the  other,  the  House  of  Commons,  was  composed 
of  the  deputies  from  the  towns  and  counties,  who  had 
gradually  consolidated  into  a  single  house,  and  might 
be  said  to  represent  all  the  people  who  were  not  peers. 

By  degrees  the  House  of  Commons  acquired  the 
right  of  originating  all  bills  for  raising  or  spending 
money,  and  hence^its  support  became^ssential  to  the 
Crown.  But  Its  members  were  independent,  and  on 
13ie  whole  less  open  to  court  influence  than  the  peers. 
They  felt  under  no  obligation  to  support  the  policy  of 
the  government,  or  to  vote  an  appropriation  unless  they 
understood  and  approved  the  purpose  for  which  it  was 
to  be  used;  and  King  William  III.,  during  his  wars 
with  France,  found  them  by  no  means  as  easy  to  man- 
age as  he  could  wish.  Hitherto  his  ministers  had  been 
selected  from  both  political  parties,  and  hence  were  not 
in  harmony  with  each  other,  and  were  unable  to  exert 
an  effective  influence  in  Parliament  ;  but  between  1693 
and  1696  he  dismissed  the  Tories,  and  confided  all  the 
great  offices  of  state  to  the  Whigs,  who  had  a  majority 
in  the  Commons.  The  result  was  that  the  House  which 
had  been  turbulent  became  docile  ;  and  the  ministers 
by  winning  its  confidence  were  able  to  guide  it,  and 
obtain  the  appropriations  that  were  required. 
the  origin  of  the  practice 


t£e  leS^^s^f^he^majpntyin  Parliament,  —  a  practice 
whiclTat  aTateFtime  crystallized  into  a  principle  of  the 
British  Constitution.1  But  of  course  men  who  held 
the  most  important  offices,  and  at  the  same  time  led  the 

1  Macaulay,  History  of  England,  chap.  xx. 


4  FRANCE. 

House  of  Commons,  were  certain  not  to  be  mere  tools 
in  the  hands  of  the  King.  They  were  sure  to  try  to 
carry  out  their  own  policy,  and  when  the  sceptre  of 
William  had  passed  into  the  hands  of  the  first  two 
Georges,  who  were  foreigners  and  took  little  interest  in 
English  politics,  the  ministers  exercised  the  royal  power 
as  they  pleased,  and  became  in  fact  the  custodians  of 
the  prerogatives  of  the  Crown.  The  subordination  of 
the  King  to  his  ministers  is,  indeed,  the  inevitable  re- 
sult of  the  system  ;  for  so  long  as  the  latter  retain  their 
influence  over  the  House,  and  can  direct  its  votes,  they 
can  hold  their  offices  and  administer  them  according  to 
their  own  views.  If  the  King  attempts  to  dismiss  them 
they  can  block  the  wheels  of  government,  by  inducing 
Parliament  to  withhold  supplies  ;  and  if,  on  the  other 
,  hand,  they  cease  to  be  the  leaders  of  the  House,  and 
\  0^>  a  different  party  with  new  leaders  gets  a  majority,  the 
\^  A  ^  King  finds  himself  obliged  to  send  for  these  and  intrust 
k  n\p  the  government  to  them.  The  system  which  had  been 
devised  in  order  that  the  King  might  control  the  House 
of  Commons  became,  therefore,  the  means  by  which  the 
House  of  Commons,  through  its  leaders,  controUed  the 
King,  and  thus  all  the  power  of  the  House  of  Commons 
and  of  the  Crown  became  vested  in  the  same  men,  who 

ided  legislation  and  took  charge  of  the  administration 

the  same  time. 

The  Housje  jafLords,  meanwhile,  was  losing  ground. 
It  had^o^cight  to  initiate  or  amejaj  money  Jbjllg,  and, 
what  was  far  moriBTniportant,  itnad  no  influence 
f  ooatioBh-ethe  olicLXXthecaEmeC  The  ministers 


^ 
were,  indeed/olten  peers,  but  they  were  not  selected 


NATURE  OF  PARLIAMENTARY  GOVERNMENT.         6 

because  they  belonged  to  the  majority  in  the  House  of 
Lords,  nor  did  they  resign  when  that  body  voted  against 
them.  Like  their  colleagues  from  the  other  House,  they 
represented  the  majority  in  the  Commons,  and  were 
solidly  in  accord  with  it.  The  House  of  Lords,  there- 
fore, found  itself  confronted  by  the  combined  power  of 
the  Crown  and  the  House  of  Commons,  and  this  it  was 
unable  to  resist.  In  fact  the  power  to_create^iew_peer8 
furnished  the  Crown,  or  rather  the  ministers  acting  in 
its  name,  with  a  weapon  always  ready  to  break  an 
obstinate  resistance,  and  at  the  time  of  the  Reform  Bill 
of  1832  a  threat  of  this  kind  was  enough  to  compel 
submission.  The  Upper  House  has  thus  gradually  lost 
authority,  until  now  it  does  not  venture  to  reject  any 
measure  on  which  the  cabinet  is  really  in  earnest, — 
unless  perchance,  as  in  the  case  of  the  recent  Home 
Rule  bill,  it  isxconvinced  that  the  House  of  Commons 
does  not  fairly  represent  the  people,  and  that  a  new 
election  would  result  in  a  victory  for  the  party  in  oppo- 
sition. In  such  a  case  the  refusal  to  pass  the  measure 
is  tantamount  to  a  demand  for  a  Referendum.1 

The  ministers  remain  in  office  only  so  long  as  they 
continue  to  be  the  leaders  of  the  Lower  House  and  are 
able  to  control  the  majority.  When  this  condition  has 
changed,  a  vote  is  sometimes  passed  to  the  effect  that 
the  ministers  have  ceased  to  possess  the  confidence  of 
the  House ;  but  such  an  express  declaration  is  rarely  used 

1  It  is  a  curious  fact  that  the  Premier  of  New  South  Wales  has  recently 
proposed  to  prevent  deadlocks  between  the  Houses  by  providing  that 
after  a  bill  has  been  rejected  once  by  the  Legislative  Council  and  again 
passed  by  the  Assembly,  the  Council  shall  not  have  power  to  reject  it  a 
second  time,  but  may  require  it  to  be  submitted  to  popular  vote.  A  sim- 
ilar proposal  has  been  discussed  in  Belgium. 


6  FRANCE. 

at  the  present  day,  and  a  hostile  vote  on  any  matter  of 
considerable  importance  is  treated  as  a  proof  that  the 
government  has  no  longer  the  support  of  a  majority. 
After  suoh^a  vote,  therefoie^he  ministers_resign,  and 
ifjbhere  is  a  normal  division  inta  tare^parties  the-Crown 
sendsToTthe  leader  of  the  opposition,  and  intrusts  him 
with  the  formation  of  a  cabinet.  The  defeated  minis- 
ters have,  however,  one  other  Alternative.  If  they  think 
that  the  House  of  Commons  has  ceased  to  be  in  har- 
mony with  the  opinion  of  the  nation,  they  can  dissolve 
Parliament  in  the  name  of  the  Crown,  and  try  the 
chance  of  a  new  election.  Thus  in  the  I£nglisj3__£arlia- 
nlejrtary  system  the  direction  of  jhe^kgisjajure^nd ^Ee 

is  in  the  hands  of  jthe  Jeaders 


of  the  majoritjiJn-tlieHpuse  of  Qomnions.  For  their 
exercise  of  power  these  leaders  are  directly  responsi- 
ble to  the  House  of  Commons,  which  can  call  them  to 
account  at  any  time ;  while  the  House  itself  is  responsi- 
ble to  the  people,  which  gives  its  verdict  whenever  the 
end  of  the  term  of  Parliament  or  a  dissolution  brings 
about  a  general  election. 

Turning  now  from  the  consideration  of  English  forms 

Parliament-    °^  government  to  those  in  use  on  the  Con- 

mLfo^'e    tinent,  we  find  that  the  main  features  of  the 

Continent.      B^tish  Constitution  have  been  very  generally 

imitated.     In  fact,  the  plan  of  two  chambers,  one  of 

which  issues  from  an  extended  suffrage  and  has  the 

primary  control  of  the  purse,  and  of  a  cabinet  whose 

,   members  appear  in  the  chambers  and  are  jointly  respon- 

^    sikle  *°  the  more  popular  one,  so  that  all  the  ministers 

AjSjWgn  on  an  adverse  vote  of  that  chamber,  is  of  Eng- 

^ 


ENGLISH  SYSTEM  IMPERFECTLY  COPIED.  7 

lish  origin,  and  has  spread  widely  over  Europe.  These 
features  of  the  parliamentary  system  are  striking,  and 
have  become  famous,  while  the  procedure  in  the  House 
of  Commons,  which  enables  the  system  to  work  smoothly, 
has  attracted  far  less  attention,  and  has  been  followed 
very  little.  This  is  peculiarly  true  of  France,  where  the 
principlejof^cabinet  responsibility  has  been  adopted  to 

there  'eSsTatTEe'  same 


time  several  practices  that  help  to  twist  parliamentary 
government  out  of  the  normal  form.  More  curious  still 
is  the  fact  that  these  very  practices  have  been  blindly 
copied  by  other  countries  which  intended  to  imitate  the 
English  system. 

A  description  of  the  French  government  must  begin 
with  its  structure,  with  the  legal  composition  Outline  of 
and  powers  of  the  different  political  bodies.  gecon?cha^ 
This  will  occupy  the  present  chapter.  In  the  * 
next,  the  actual  working  of  the  system  will  be  consid- 
ered, especially  in  regard  to  the  character  of  political 
parties  ;  and  an  attempt  will  be  made  to  explain  the 
peculiarities  that  are  found  by  a  reference  to  the  condi- 
tion of  the  people,  and  to  those  parts  of  the  political 
machinery  that  seem  to  have  a  marked  effect.  In  other 
words,  we  shall  begin  with  the  skeleton,  and  then  take 
up  the  muscles  and  nerves. 

The  first  thing  one  looks  for  in  a  modern  government 
is  the  constitution  :  but  although  the  French 

-D          i-v       i  J-.L    .•  •,     ivo*  •  The  French 

Kepublic  has  a  constitution,  it  diners  in  two  Constitu- 
very  important  respects  from  those  to  which 
we  are  accustomed.     It  is  not  comprised  in  any  one 
document,   but   in    a    series    of  distinct  laws,  and  it 


8  FRANCE. 

contains  few  provisions  limiting  the  functions  of  the 
different  bodies,  or  prescribing  fundamental  rights 
which  the  state  is  enjoined  to  respect.  This  is  a  depart- 
ure not  only  from  American,  but  also  from  the  earlier 
French  usage,  for  previous  constitutions  in  France  have 
been  long  documents  and  have  contained  elaborate 
bills  of  rights ;  although  the  absence  of  practical  guar- 
antees has  made  their  effectiveness  depend  upon  the 
good  pleasure  of  the  government.  The  present  consti- 
tution is  very  different,  and  barely  provides  for  thf> 
organization  of  the  powers  of  the  state,  without  even 
speaking  of  such  important  matters  as  a  yearly  budget 
or  the  tenure  of  office  of  the  judges.  It  does  little 
more  than  establish  the  main  framework  of  the  govern- 
ment by  declaring  what  the  chief  organs  of  public  life 
shall  be,  leaving  them  almost  entirely  free  to  exercise 
their  authority  as  they  see  fit.  The  reason  for  such  a 
departure  from  French  traditions  is  to  be  found  in  the 
circumstances  of  the  case.  The  earlier  constitutions  in 
France  were  attempts  to  frame  an  ideal  system,  but  the 
present  one  resulted  from  an  immediate  need  of  pro- 
viding a  regular  government  of  some  sort  that  could 
rule  the  country  for  the  time,  and  was  drawn  up  by 
men  who  had  no  belief  in  its  inherent  perfection.  To 
understand  this  it  is  necessary  to  glance  at  the  history 
of  the  period. 

The  rapid  series  of  defeats  suffered  by  the  French 
History  of  armies  at  the  hands  of  the  GermanSiJnJ^JO^ 
its  creation.  Destroyed  tne  tottering  authority  of  the 
empire,  and  as  soon  as  the  news  of  the  surrender  of 
Napoleon  III.  at  Sedan  reached  Paris  an  insurrection 


THE  CONSTITUTION.  9 

broke  out  on  the  fourth  of  September.  The  republic 
was  at  once  proclaimed,  but  this  was  no  time  to  debate 
plans  for  a  constitution,  and  so  long  as  the  war  lasted 
the  country  was  ruled  bjjjbp  sfilf-ylegted  Government 
ofjjia  National  Dofenoo.  When  the  war  w»as  over,  a 
National  Assembly  with  indefinite  powers  was  chosen 
by  universal  suffrage.  The  member  of  this  body  who 
commanded  the  most  general  public  confidence  was 
Thiers,  the  historian,  and  former  minister  of  Louis 
Philippe.  To  him  the  Assembly  intrusted  the  execu- 
tive power,  and  in  August,  1871,  it  gave  him  the  title 
of  President,  without,  however,  fixing  any  term  for  the 
duration  of  the  office.  Thiers  was  constantly  urged 
to  introduce  the  parliamentary  system  by  allowing  his 
ministers  to  assume  the  responsibility  for  his  acts,  but 
this  he  refused  to  do,  saying  that  the  position  in  which 
it  would  place  him,  although  perfectly  consistent  with 
the  dignity  of  an  hereditary  king,  was  for  him,  a  little  ^T)^ 
bourgeois,  entirely  out  of  the  question.1  He  held  hin?^  * 
self,  however,  personally  responsible  tqJLheAssembly 
for  the  conduct  of  his  government,  took  paT>t-Jn  ^^ 
debates  on  the  measures  he  proposed,  and  declared  that 
he  was  ready  to  resign  at  any  time,  if  the  majority 
wanted  him  to  do  so.2  This  state  of  things  continued 

1  The  law  of  Aug.  31, 1871,  declared  that  the  President  as  well  as  the 
ministers  should  be  responsible  to  the  Assembly.     See  Dupriez,  Les  Mi, 
nistres  dans  les  Principaux  Pays  d' Europe  et  d'Amerique,  vol.  ii.  p.  320. 

2  The  law  of  March  13,  1873,  abolished  the  right  of  the  President  k 
take  part  in  debate,  and  while  allowing  him  to  address  the  Assembly^ 
ordered  the  sitting  to  be  suspended  immediately  after  his  speech.     Thi, 
was,  of  course,  an  attempt  to  reduce  the  personal  influence  of 
(Dupriez,  vol.  ii.  pp.  321-22.) 


10  FRANCE. 

for  nearly  two  years,  when  a  hosjilfi^yote 
to  retire.  His  successor,  Marshal  McMahon,  was 
elected  for  a  term  of  seven  years,  and  as  the  new 
President  was  not  a  member  of  the  Assembly,  his  cabi- 
net became  responsible  in  the  parliamentary  sense. 
But  although  the  chief  magistrate  now  held  office  for 
a  fixed  period,  and  was  freed  from  the  caprices  of  an 
uncertain  majority,  still  there  was 


n^permanent  organization^of^the  government.^    The 
situation  wa^r  m  fact,  si^ovn^otr^\)To[on^ed  ab- 


normally by  the  strange  condition  of  politics.  The 
monarchists  formed  a  majority  of  the  Assembly,  but 
they  were  hopelessly  divided  into  two  sections,  —  the 
Legitimists,  whose  candidate  was  the  Comte  de  Cham- 
bord,  and  the  Orleanists,  who  followed  the  Comte  de 
Paris.  At  one  moment  it  seemed  not  impossible  that 
the  Comte  de  Chambord  might  become  king,  and  some 
of  his  supporters  opened  negotiations  for  the  purpose  ; 
but  these  were  brought  to  nothing  by  obstinacy  of  the 
Prince  himself,  who  was  a  true  scion  of  his  race,  and 
would  not  yield  one  jot  of  his  pretensions.  He  even 
refused  to  accept  the  tricolor  flag  that  means  so  much 
to  Frenchmen,  and  clung  doggedly  to  the  ancient  white 
standard  of  his  house.  Under  such  circumstances,  a 
monarchy  was  out  of  the  question,  and  so  this  assembly 
TheConstitu-  °^  monarchists  at  last  set  to  work  to  organize 
tionai  Laws.  a  republic  •  or  rather  a  sufficient  number  of 
monarchists,  feeling  that  a  republic  was,  for  the  time 
at  least,  inevitable,  joined  with  the  minority  to  estab- 
lish a  government  on  the  only  basis  possible.1  But 

1  Very  good  brief  descriptions  of  the  formation  of  the  Constitution 


THE  CONSTITUTION. 


11 


although  the  republican  form  was  adopted,  the  institu- 
tions that  were  set  up  departed  essentially  from  the 
ideas  which  the  French  had  been  accustomed  to  asso- 
ciate with  that  term.  Th 

—  " 

all_j3oJiiiQfti  ityiUums  thai  kage^been  created  suddenly" 

4-karre  pi'oved-katjng,  was 
From  the  French  republican  principles  there  was  bor- 
rowed, besides  the  name,  little  more  than  the  election  of 
the  chief  magistrate,  while  from  the  traditions  of  con- 
stitutional monarchy  were  taken  the  irresponsibility  of 
the  head  of  the  state,  and  the  existence  of  a  second 
legislative  chamber.1  Now  it  was  natural  that  no  one 
should  feel  inclined  to  construct  an  ideal  system  on  a 
hybrid  foundation  of  this  kind.  Moreover  none  of  the 
parties  regarded  the  work  of  the  Assembly  as  final,  for 
the  monarchists  looked  forward  to  a  future  restoration 
of  the  throne,  while  their  adversaries  hoped  to  place 
the  republic  before  long  on  a  more  secure  and  perma- 
nent footing.  Hence  the  ^saaqibly  did  no  more Jban 


provide  for  the  immediate 


vern- 
a  manner  aspossible.     It 


passed  three  constitutional   laws,  as  they  are   catted, 
which  are  in  the  form  of  ordinary  statutes,  and  very 


may  be  found  in  Boze*rian's  Etude  sur  la  Revision  de  la  Constitution,  and 
in  Professor  Currier's  Constitutional  and  Organic  Laws  of  France.  The 
latter,  published  as  a  supplement  to  the  Annals  of  the  American  Academy 
of  Political  Science  (March,  1893),  gives  a  translation  into  English  of  all 
these  laws.  See  also  an  article  by  Saleilles  on  the  "  Development  of  the 
Present  Constitution  of  France."  {Ann.  Amer.  Acad.  of  Pol.  5ct.,  July, 
1895.) 

1  Lebon,   Frankreich   (in  Marquardseu's  Handbuch  des    Oeffentlichen 
Rechts},  p.  19. 


12  FRANCE. 

short  and  concise.     One  of  them,  that  of 

75,,  proyi4g_§  f  or_the  organization! Q^-tke^powers  of 
tjie  state.    Another,  that  of  j^rjiar£24,1875 
greater  detail  with  the  organization  oFtlieSenate. 
the  thircTpflateTi  July  16,  1875;  feres-jj 
oI  the  staie  among  themselves 

The  pro  vision^  character  of  the  cbTrstitertion  is  clearly 
Amend  seen  *n  tne  method  of  amendment.  It  has 
been  the  habit  in  France  to  make  a  sharp  dis- 
tinction between  the  constituent  and  legislative  powers, 
the  former  being  withdrawn  to  a  greater  or  less  extent 
from  the  control  of  the  Parliament.  But  in  this  in- 
stance both  of  the  great  parties  wanted  to  facilitate 
changes  in  the  fundamental  laws,  in  order  to  be  able  to 
carry  out  their  own  plans  whenever  a  favorable  occasion 
might  present  itself.1  A  departure  from  tradition  was 
therefore  made,  and  it  was  provided  that  the  constitu- 
tional laws  could  be  amended  by  a  National  Assembly, 
or  Congress,  composed  of  the  two  branches  of  Parlia- 
ment sitting  together,  which  should  meet  for  this  pur- 
pose whenever  both  chambers  on  their  own  motion,  or 
on  that  of  the  President  of  the  Republic,  declared  the 
need  of  revision.2  The  constitutional  laws  have  been 


1  Cf.  Borgeaud,  Etablissement  el  Revision  des  Constitutions,  pt.  iii.  liv.  ii. 
eh.  viii. 

2  Const.  Law  of  Feb.  25,  1875,  Art.  8.     It  is  not  provided  whether  the 
Chambers  shall  declare  in  general  terms  that  there  is  a  need  of  revision, 
or  whether  they  shall  specify  the  revision  to  be  made,  and  this  point  has 
given  rise  to  lively  debates;  but  on  the  two  occasions  when  a  revision  was 
actually  undertaken,  the  Chambers  passed  identical  resolutions  specifying 
the  articles  to  be  amended.    (Lebon,  Frankreich,  pp.  74, 75  ;  Saleilles,  op. 
tit.  pp.  6,  7,  9.) 


THE  CONSTITUTION.  13 

twice  amended  in  this  way.  On  the  first  occasion 
(June  21,  1879),  the  provision  making  Versailles  the 
capital  was  repealed,  and  thereupon  a  statute  was 
passed  transferring  the  seat  of  government  to  Paris.1 
On  the  second  occasion  (August  14,  1884),  several 
amendments  were  made.  Among  these  one  of  the 
most  notable  changed  the  provisions  relating  to  the 
mode  of  electing  senators,  and  another  declared  that 
the  republican  form  of  government  cannot  be  made  the 
subject  of  proposal  for  revision,  —  the  object  of  the 
latter  being  to  prevent  the  destruction  of  the  Republic 
by  constitutional  means.  The  device  of  providing  that 
a  law  sBall  never  be  repealed  is  an  old  one,  but  I  am 
not  aware  that  it  has  ever  been  of  any  avail. 

This  method  of  amendment  has  virtually  rendered 
the  Parliament  omnipotent,  for  excepting  the  provision 
about  changing  the  republican  form  of  government, 
there  is  no  restriction  on  its  authority.  The  Chambers 
cannot,  it  is  true,  pass  an  amendment  to  the  consti- 
tutional laws  in  the  form  of  an  ordinary  statute,  but 
if  they  are  agreed  they  can  pass  it  by  meeting  as  a 
National  Assembly.  The  power  of  the  Chambers  is 
therefore  nearly  as  absolute  as  that  of  the  British  Par- 
liament.2 The  principle,  moreover,  that  the  funda- 
mental law  cannot  be  changed  by  ordinary^  statute  is 
devoid  of  legal  sanction,  for  if  the  Chambers  should 
choose  to  pass  an  act  of  this  kind,  no  court  or  official— 
could_legally  prevent  its  application.3  But  while  the 

1  Law  of  July  22,  1879.    This  act  provides,  however,  that  the  National 
Assembly  shall  meet  at  Versailles. 

2  Cf.  Saleilles,  op.  cit.,  p.  11. 

8  Cf.  Laferriere,  Traite  de  la  Jurisdiction  Administrative,  vol.  ii.  p.  5. 


FRANCE. 

constitution  imposes  no  legal  restraint  on  the  Parlia- 
ment, it  would  be  a  great  mistake  to  suppose  that  it 
had  no  effect.  On  the  contrary,  it  has  such  moral  force 
that  any  attempt  to  pass  a  statute  that  clearly  violated 
its  terms  would  awake  a  strong  repugnance ;  and  indeed 
a  suggestion  by  the  president  of  one  or  other  of  the 
Chambers  that  a  bill  would  be  unconstitutional  has  more 
than  once  sufficed  to  prevent  its  introduction.1  On  the 
other  hand,  the  fact  that  formal  amendments  can  be 
made  only  in  joint  session,  and  only  after  both  Chambers 
have  resolved  that  there  is  a  need  of  revision,  has  some 
influence  in  preventing  changes  in  the  text  of  the 
constitutional  laws,  because  the  Senate,  being  the  more 
conservative  body,  and  only  half  as  large  as  the  other 
House,  is  timid  about  going  into  joint  session,  not 
knowing  what  radical  amendments  may  be  proposed 
there,  and  fearing  to  be  swamped  by  the  votes  of  the 
deputies. 

Let  us  now  examine  the  organs  of  the  state  in 
succession,  taking  up  first  the  Parliament  with  its  two 
branches,  the  Senate  and  the  Chamber  of  Deputies ; 
then  turning  to  the  President  as  the  chief  magistrate  of 
the  Republic,  and  finally  passing  to  the  ministers  as  the 
connecting  link  between  the  Parliament  and  the  Presi- 
dent, and  the  controlling  factor  in  the  machinery  of  the 
state. 

The  composition  of  the  Chamber  of  Deputies  is  left  to 
ordinary  legislation,  except  that  the  constitu- 
bereof  Dae™u-  tional  law  of  February  25, 1875,  Art.  1,  pro- 
vides for  its  election  by  universal  suffrage.  By 

1  Lebon,  Frankreich,  p.  23. 


THE  CHAMBER  OF  DEPUTIES.  15 

statute  the  ballot  is  secret,  and  the  franchise  extends  to 
all  men  over  twenty-one  years  of  age  who  have  not  been 
deprived  of  the  right  to  vote  in  consequence  of  a  con- 
viction for  crime,  and  who  are  not  bankrupts,  under 
guardianship,  or  in  active  military  or  naval  service.1  To 
be  eligible  a  candidate  must  be  twenty-five  years  old 
and  not  disqualified  from  being  a  voter.'2  ^Members  of 
families  that  have  ever  reigned  in  France  are,  kowover, 
excluded ; 3  and  in  order  to  prevent  as  far  as  possible 
the  use  of  pressure  the  law  forbids  almost  every  state  , 
official  to  be  a  candidate  in  a  district  where  his  position  V. 
might  enable  him  to  influence  the  election.4  As  a  fur- 
ther safeguard  against  the  power  of  the  administration, 
which  is  justly  dreaded  by  the  French  Liberals,  it  is 
provided  that  all  public  servants  who  receive  salaries, 
except  a  few  of  the  highest  in  rank,  shall  lose  their 
offices  if  they  accept  an  election  to  Parliament,  and  that 
a  deputy  who  is  appointed  even  to  one  of  these  highest 
offices,  unless  it  be  that  of  minister  or  under-secretary, 
shall  lose  his  seat.5 

The  Chamber  of  Deputies  is  elected  for  four  years, 
and  consists  at  present  of  five  hundred  and  The  method 
ninety-seven  members ;  ten  of  the  seats  being  of  electlon- 
distributed  among  the  various  colonies,  and  six  allotted 
to  Algiers,  while  the  remaining  deputies  are  chosen  in 

1  Arts.  1,  2,  and  5  of  the  Law  of  Nov.  30,  1875.     Poudra  et  Pierre, 
Droit  Parlementaire,  sects.  482-84,  498-514. 

2  Law  of  Nov.  30,  1875,  Arts.  6,  7. 
8  Law  of  June  16,  1885,  Art.  4. 

4  Law  of  Nov.  30,  1875,  Art.  12. 

6  Id.,  Arts.  8,  9,  and  11.     A  deputy  appointed  to  one  of  these  offices 
may,  however,  be  reelected  (Art.  11}. 


16  FRANCE. 

France.     The  method  of  election  has  varied  from  time 

to  time  between  that  of  single  electoral  dis- 

liste  and        tricts,  a  system  called  the  scrutin   d'arron- 


dissement,  and  that  of  the  scrutin  de  liste, 

dissement.  i  •    i  •          •        i          i  p     n     i        i 

which  consists  in  the  choice  01  all  the  deputies 
from  each  department  on  a  general  ticket,  the  difference 
being  the  same  that  exists  between  our  method  of  elect- 
ing congressmen  each  in  a  separate  district,  and  our 
method  of  choosing  presidential  electors  on  a  single  ticket 
for  the  whole  State.  The  scrutin  d'arrondissement  or 
single  district  system  prevailed  from  1876  to  1885,  when 
^he  scrutin  de  liste  was  revived  ;  1  partly,  no  doubt,  in 
order  to  swamp  the  reactionary  minority,  but  also  with 
the  hope  of  withdrawing  the  deputies  from  the  pressure 
of  petty  local  interests,  which  had  become  lamentably 
strong,  of  getting  a  Chamber  of  broader  and  more 
national  views,  and  of  forming  a  Republican  majority 
that  would  be  more  truly  a  great  and  united  party. 
The  experiment  did  not  last  long  enough  to  produce 
any  sensible  effect  of  this  kind  ;  and  indeed  the  change 
seems,  on  the  whole,  to  have  resulted  in  an  increase  of 
the  power  of  the  local  politicians,  who  formed  themselves 
into  nominating  and  electoral  committees  for  the  depart- 
ment. At  the  general  elections  of  1885  the  Reaction- 
aries gained  rather  than  lost  seats  in  spite  of  the  scrutin 
de  liste;  and  the  disgust  of  the  Republicans  with  the 
device  from  which  they  had  hoped  so  much  was  brought 
to  its  height  two  or  three  years  later,  by  General  Bou- 
langer.  This  singular  man,  who,  after  enjoying  a  mar- 
velous popularity,  became  in  a  short  time  an  object  of 

1  Law  of  Jim*,  16,  1885. 


THE  CHAMBER  OF  DEPUTIES.  17 

contempt,  if  not  of  ridicule,  had  been  minister  of  war  in 
one  of  the  recent  Kepublican  cabinets.  He  was  forced 
to  resign  on  account  of  his  enormous  expenditure  on 
the  army,  and  the  fear  that  he  would  plunge  the  nation 
into  a  war  with  Germany.  He  then  posed  as  the  saviour 
of  the  country,  and  being  at  the  height  of  his  reputa- 
tion he  made  use  of  the  scrutin  de  liste  to  hold  a 
plebiscite  or  popular  vote  of  France  piecemeal.  When- 
ever a  seat  became  vacant  in  a  department  he  stood  as 
a  candidate,  and  if  elected  he  held  the  seat  only  until 
a  vacancy  occurred  in  another  department,  when  he 
resigned  to  appear  as  a  candidate  again.  After  doing 
this  in  several  large  departments  he  was  able  to  declare 
that  a  considerable  part  of  the  French  people  had  pro- 
nounced themselves  on  his  side  —  a  proceeding  which 
would  have  been  impossible  if  the  deputies  had  been 
elected  in  five  hundred  and  seventy-six  separate  dis- 
tricts. His  success  at  the  by-elections  had  so  fright- 
ened the  Republicans  that  they  restored  the  scrutin 
d'arrondissement  or  single  electoral  districts  before  the 
general  election  of  1889  took  place.1 

Every  large  body  of  men,  not  under  strict  military 
discipline,  has  lurking  in  it  the  traits  of  a  mob,  and 


1  Law  of  Feb.  13,  1889.  In  order  to  frustrate  more  effectually  Bou- 
langer's  scheme,  a  law  of  July  17,  1889,  provided  that  no  one  should  be 
candidate  in  more  than  one  district.  The  meaning  and  effects  of  these 
laws  is  discussed  by  Saleilles  (Ann.  Am.  Acad.  Pol.  ScL,  July,  1895,  pp. 
19-37).  A  measure  providing  for  the  restoration  of  the  scrutin  de  liste 
with  an  arrangement  for  proportional  representation  passed  the  Chamber 
of  Deputies  in  1912.  For  the  arguments  in  its  favor,  see  "  Electoral  Re- 
form in  France,"  by  J.  W.  Garner,  American  Political  Science  Review,  vii, 
pp.  610-38  (Nov.,  1913). 


18  FRANCE. 

is  liable  to  occasional  outbreaks  when  the  spirit  of  dis« 
The  Cham-  order  becomes  epidemic;  but  the  French 
muituouB  Chamber  of  Deputies  is  especially  tumultuous, 
and,  in  times  of  great  excitement,  sometimes 
breaks  into  a  veritable  uproar.  Even  the  method  of 
preserving  order  lacks  the  decorum  and  dignity  that 
one  expects  in  a  legislative  assembly.  The  President 
has  power  to  call  a  refractory  member  to  order  and 
impose  a  penalty  in  case  he  persists;  but  instead  of 
relying  on  this  alone,  he  often  tries  to  enforce  silence 
by  caustic  remarks.  The  writer  remembers  being  in 
the  Chamber  a  few  years  ago  when  M.  Floquet  was 
presiding,  —  the  same  man  who  fought  a  duel  with 
General  Boulanger  and  wounded  him  in  the  throat. 
A  deputy  who  had  just  been  speaking  kept  interrupt- 
ing the  member  who  was  addressing  the  Chamber,  and 
when  called  to  order  made  some  remark  about  parlia- 
mentary practice.  The  President  cried  out,  "  It  is  not 
according  to  parliamentary  practice  for  one  man  to 
speak  all  the  time."  "  I  am  not  speaking  all  the  time," 
said  the  deputy.  "  At  this  moment  you  are  overbear- 
ing everybody,"  answered  the  President.  This  incident 
is  related,  not  as  being  unusual  or  humorous,  but  as 
a  fair  sample  of  what  is  constantly  occurring  in  the 
Chamber.  Even  real  sarcasm  does  not  seem  to  be 
thought  improper.  Thus  in  a  recent  debate  a  deputy, 
in  the  midst  of  an  unusually  long  speech,  was  con- 
tinually interrupted,  when  the  President,  Floquet,  ex- 
claimed, "  Pray  be  silent,  gentlemen.  The  member 
who  is  speaking  has  never  before  approached  so  near 
to  the  question."1  These  sallies  from  the  chair  are  an 

1  Journal  Officiel  of  Nov.  18,  1892. 


THE  SENATE.  19 

old  tradition  in  France,  although,  of  course,  their  use 
depends  on  the  personal  character  of  the  President. 
One  does  not,  for  example,  find  them  at  all  in  the 
reports  of  debates  during  the  time  Casimir-Perier  was 
presiding  over  the  Chamber.  When  the  confusion  gets 
beyond  all  control,  and  the  President  is  at  his  wits' 
end,  he  puts  on  his  hat,  and  if  this  does  not  quell  the 
disturbance,  he  suspends  the  sitting  for  an  hour  in 
order  to  give  time  for  the  excitement  to  subside. 

The  French  Senate  consists  of  three  hundred  mem- 
bers, and  by  the  constitutional  law_ot_Feb~ 
"niary  z4,  1875,  two  hundred  and  twenty-five 
ot  these  were  tobe  elected  for  nine  years  by  the  depart- 
ments,  while  seventy-five  were  appointed  for  life  by  the 
same  National  Assembly  that  framed  that^law^  The 
life  senators  were  intended  to  be  a  permanent  feature  of 
the  Senate,  and  it  was  provided  that  when  any  of  them 
died  his  successor  should  be  elected  for  life  by  the  Sen- 
ate itself.  A  few  years  later,  however,  the  Republi- 
cans, thinking  such  an  institution  inconsistent  with 

'  O 

democracy,  passed  the  amendment  to  the  constitutional 
laws,  to  which  a  reference  has  already  been  made.1 
This,  while  leaving  untouched  the  provisions  relating 
to  the  existence  and  powers  of  the  Senate,  took  away  the 
constitutional  character  from  those  regulating  the  elec- 
tion of  senators,  which  thus  became  subject  to  change 
by  ordinary  legislation.  A  statute  was  then  passed 
(December  9,  1884)  providing  that  as  fast  as  the  life 
senators  died  their  seats  should  be  distributed  among 
the  departments,  so  that  nowadays  all  the  senators 

1  Const.  Law  of  Aug.  14,  1884. 


20  FRANCE. 

alike  are  elected  in  the  same  way.  There  are  eighty- 
six  departments  in  France,  and  the  senators  are  appor- 
tioned by  frke  act  among  them  according  to  population. 
Since  the  abolition  of  life  senatorships,  the  number  of 
seats  belonging  to  a  department  varies  from  two  up 
to  ten,  while  the  territory  of  Belfort,  each  of  the  three 
departments  of  Algiers,  and  several  of  the  colonies  are 
represented  by  one  senator  apiece.1  The  senators  so 
elected  hold  office  for  nine  years,  one  third  retiring 
every  three  years.2  They  are  chosen  in  each  depart- 
ment of  France  by  an  electoral  college  composed  of 
the  deputies,  of  the  members  of  the  general  council, 
of  the  members  of  the  councils  of  the  arrondissements, 
and  of  delegates  chosen  by  the  municipal  councils  of 
the  communes  of  towns.3  Before  1884  each  commune 
elected  only  one  delegate,4  but  by  the  law  of  that  year 
the  number  of  delegates  increases  with  the  size  of  the 
communes,  though  much  less  than  in  proportion  to  the 
population.  These  communal  delegates  form  a  large 
majority  of  the  electoral  college,  and  hence  the  Senate 
was  called  by  Gambetta  the  Great  Council  of  the  Com- 
munes of  France.5 

A  senator  must  be  forty  years  old ;  and  since  the  law 
of  1884  the  disqualifications  for  this  office  have  been 
the  same  as  for  that  of  member  of  the  Chamber  of 
Deputies.6 

1  Law  of  Dec.  9,  1884,  Art.  2. 

2  Id.,  Art.  7. 

3  Id.,  Art.  6. 

4  Const.  Law  of  Feb.  24,  1875,  Art.  4. 
6  Saleilles,  op.  tit.,  p.  41. 

6  Law  of  Dec.  9,  1884,  Arts.  4,  5,  and  Provisions  Temporaires.     Law 
of  Dec.  26,  1887.     Lebon,  Frankreich,  pp.  63,  64,  67. 


THE  SENATE.  21 

The  legislative  power  of  the  Senate  and  the  Chamber 
of  Deputies  is  the  same,  except  that  financial  It8  funo_ 
bills  must  originate  in  the  latter;1  but  while  tlons* 
it  is  admitted  that  the  Senate  may  reduce  proposals  for 
taxes  and  appropriations,  there  is  a  dispute  whether  it 
can  increase  them  or  not,  and  debates  on  this  point  are 
constantly  recurring.  In  practice  the  Chamber  has  some- 
times accepted  augmentations  thus  introduced,  but  more 
frequently  the  Senate  has  abandoned  them.2  The  Senate 
has  two  peculiar  functions.  First,  its  consent  is  neces- 
sary for  a  dissolution  of  the  Chamber  of  Deputies,3  a 
provision  designed  as  a  safeguard  against  the  President, 
who  might  otherwise  dissolve  the  Chamber  in  order  to 
attempt  a  coup  d'etat  during  its  absence ;  and,  second, 
the  President  is  authorized,  with  the  approval  of  the 
Council  of  Ministers,  to  constitute  the  Senate  a  high 
court  to  try  any  one  for  an  attempt  on  the  safety  of  the 
state.4  This  power  was  used  in  the  case  of  General 
Boulanger,  who  failed  to  appear  for  trial,  and  was  con- 
demned in  his  absence. 

With  such  an  organization  and  powers,  an  American 
might  suppose  that  the  Senate  would  be  a  Its  actual 
more  influential  body  than  the  Chamber  of  ^™™*- 

1  Const.  Law  of  Feb.  24,  1875,  Art.  8. 

2  Dupriez,  vol.  ii.  pp.  430-32. 

3  Const.  Law  of  Feb.  25, 1875,  Art.  5. 

4  Lebon,  Frankreich,  p.  73,  Const.  Laws  of  Feb.  24,  1875,  Art.  9,  and 
July  16,  1875,  Art.  12.    The  procedure  was  regulated  by  a  law  of  Aug. 
10, 1889.     By  the  Const.  Law  of  July  16,  1875,  Art.  12,  the  Chamber  of 
Deputies  can  impeach   the   ministers,  and  in  case  of  high  treason  the 
President  of  the  Republic.    The  impeachments  are  tried  by  the  Senate. 
For  the  interpretation   put  upon  this   clause,   see  Lebon,   Frankreich 
pp.  55-58. 


22  FRANCE. 

Deputies ;  but  in  reality  it  is  by  far  the  weaker  body 
of  the  two,  although  it  contains  at  least  as  much  po- 
litical ability  and  experience  as  the  other  House,  and, 
indeed,  has  as  much  dignity,  and  is  composed  of  as 
impressive  a  body  of  men  as  can  be  found  in  any 
legislative  chamber  the  world  over.  The  fact  is  that 
according  to  the  traditions  of  the  parliamentary  system 
the  cabinet  is  responsible  only  to  the  more  popular 
branch  of  the  legislature,  and  in  all  but  one  of  the 
instances  where  a  cabinet  in  France  has  resigned  on  an 
adverse  vote  of  the  Senate,  the  vote  was  rather  an 
excuse  for  the  withdrawal  of  a  discredited  ministry  than 
the  cause  of  its  resignation.1  The  remaining  case, 
which  occurred  during  the  year  1896,  is  the  only  one 
where  the  responsibility  of  the  ministers  to  the  Senate 
was  fairly  raised,  and  where  anything  like  a  real  contest 
took  place  between  the  chambers.  On  this  occasion  the 
Senate  did  certainly  force  a  united  and  vigorous  cabinet 
to  resign,  but  it  was  enabled  to  do  so  only  because  the 

1  Dupriez  (vol.  ii.  pp.  453-54)  mentions  two  such  cases.  One  in  1876, 
when  the  cabinet,  disliking  a  bill  for  an  amnesty  passed  by  the  Chamber 
of  Deputies,  proposed  in  the  Senate  a  compromise,  which  the  latter, 
averse  to  any  amnesty,  rejected.  The  ministers  thereupon  resigned,  but 
they  had  really  been  beaten  in  the  Chamber  of  Deputies,  and  their  only 
hope  of  restoring  their  prestige  lay  in  forcing  through  the  compromise. 
The  other  case  was  in  1890,  when  the  Senate  by  a  vote  condemning  the 
economic  policy  of  the  government,  brought  about  a  cabinet  crisis.  But 
the  ministry  was  already  divided  within  itself,  and  had  almost  broken  in 
pieces  a  few  days  before.  There  appears  to  have  been  a  third  instance  of 
the  same  kind  in  1883.  In  that  case  the  Fallieres  ministry  resigned 
because  the  Senate  rejected  a  bill  on  the  expulsion  of  members  of  families 
that  had  reigned  in  France,  but  here  again  the  cabinet  was  disunited  and 
in  a  feeble  condition  before  the  vote  in  the  Senate  took  place.  (Journal 
Officiel,  Feb.  18  and  19,  1883.) 


THE  SENATE.  23 

majority  in  the  Chamber  of  Deputies  was  highly  pre- 
carious, for  there  can  be  no  doubt  that  if  the  cabinet 
could  have  relied  on  the  hearty  support  of  the  Chamber 
it  would  have  defied  the  Senate  as  it  had  already  done 
two  months  before.1  It  has  been  only  in  very  excep- 

1  The  history  of  this  case  may  be  summarized  as  follows  :  The  Chamber 
of  Deputies  when  elected  contained  a  decided  majority  of  Conservative 
Republicans,  and  for  two  years  the  successive  cabinets  represented  their 
views,  but  by  degrees  the  party  became  disintegrated,  and  in  October, 
1895,  a  Radical  cabinet  was  formed,  which  succeeded  in  obtaining  the 
support  of  a  majority.  Early  in  the  new  year  the  Minister  of  Justice, 
not  being  satisfied  that  the  Juge  d*  Instruction,  who  was  holding  the  inquest 
on  the  southern  railroad  frauds,  was  sufficiently  zealous  in  discovering 
the  offenders,  took  the  case  out  of  his  hands  and  intrusted  it  to  another 
magistrate.  On  February  11,  the  Senate,  which  was  strongly  conserva- 
tive, passed  a  vote  censuring  this  act  as  an  interference  with  the  course 
of  justice.  Two  days  later,  the  Chamber  of  Deputies  expressed  its  con- 
fidence in  the  government  ;  whereupon  the  Senate,  on  February  15, 
repeated  its  former  vote.  On  the  20th,  the  matter  was  again  brought  up 
in  the  Chamber  of  Deputies,  and  M.  Bourgeois,  the  head  of  the  cabinet, 
declared  that  he  should  not  resign  so  long  as  he  was  upheld  by  the 
Chamber,  which  proceeded  to  reaffirm  its  vote  of  the  week  before.  A 
number  of  the  senators  who  had  been  opposed  to  the  cabinet,  finding 
that  it  would  not  yield,  read  in  the  Senate  next  day  a  declaration  protest- 
ing against  the  refusal  of  the  ministers  to  hold  themselves  responsible  to 
the  Senate  as  a  violation  of  the  Constitution,  but  saying  that  while  as 
senators  they  reserved  their  constitutional  right,  they  did  not  wish  to 
suspend  the  legislative  life  of  the  country.  The  Senate  thereupon  adopted 
an  order  of  the  day  approving  this  declaration,  and  thus  virtually  gave 
up  for  a  time  the  attempt  to  make  the  ministers  responsible  to  itself. 
(Journal  Officiel,  Feb.  12,  14,  16,  21,  and  22,  1896.) 

A  little  later  the  cabinet  brought  forward  a  bill  for  a  progressive  in- 
come tax,  and  succeeded  on  March  26  in  getting  the  Chamber  to  adopt  an 
order  of  the  day  approving  of  the  general  principal  involved.  The  order, 
however,  which  was  somewhat  equivocal,  was  only  carried  by  sixteen 
votes,  and  more  than  half  of  the  deputies  were  believed  to  be  opposed  in 
their  hearts  to  the  tax.  The  Senate  thought  its  opportunity  had  come, 
and  again  passed  a  vote  of  lack  of  confidence  in  the  ministry,  this  time 
on  the  subject  of  foreign  affairs.  (Journal  OJficiel,  April  4.)  The  result 


24  FRANCE. 

tional  cases,  that  the  Upper  House  has  upset  the  min- 
istry. Moreover  the  question  at  issue  in  the  struggle 
of  1896  was  not  whether  the  cabinet  is  responsible  to 
the  Senate  to  the  same  extent  that  it  is  to  the  Chamber, 
but  simply  whether  the  Senate  can  insist  on  the  removal 
of  a  ministry  to  which  it  is  peculiarly  hostile.  No  one 
has  ever  doubted  that  under  ordinary  circumstances  the 
ministers  are  responsible  only  to  the  Chamber.  The 
majority  in  that  body  alone  is  considered  in  the  forma- 
tion of  a  cabinet,  and  an  unfavorable  vote  there  on  any 
current  matter  of  importance  is  followed  by  a  change 
of  ministers,  while  a  similar  vote  in  the  Senate  is  not 
regarded  as  a  reason  for  resignation.1 

was  no  better  than  before,  but  the  Senate  felt  the  strength  of  its  position, 
and  was  not  to  be  ignored.  On  April  21,  therefore,  it  took  a  bolder  step 
by  a  resolution  to  postpone  the  vote  on  the  credits  asked  for  Madagascar 
"  until  it  had  before  it  a  constitutional  ministry  having  the  confidence  of 
the  two  Chambers."  Instead  of  trying  to  continue  the  fight  Bourgeois 
resigned,  declaring  to  the  Chamber  of  Deputies  that  as  the  representa- 
tive of  universal  suffrage  it  ought  to  be  supreme,  but  that,  owing  to  the 
impossibility  of  insuring  proper  military  service  in  Madagascar  after  the 
vote  of  the  Senate,  patriotism  obliged  him  to  withdraw.  The  Radicals 
in  the  Chamber  succeeded  in  carrying  a  vote  affirming  once  more  the 
preponderance  of  the  elect  of  universal  suffrage,  and  urging  the  need  of 
democratic  reforms  ;  but  a  few  days  later  a  purely  Conservative  cabinet 
presented  itself  to  the  Chamber,  and  obtained  a  vote  of  confidence  by  a 
majority  of  forty-three.  (Journal  Officiel,  April  22,  24,  and  May  1.) 

The  outcome  of  the  affair  justified  the  belief  that  the  Chamber  would 
not  engage  in  a  prolonged  struggle  to  support  the  cabinet ;  that  while 
unwilling  to  turn  the  ministers  out  itself,  it  would  not  be  sorry  to 
have  the  Senate  do  so.  Had  the  deputies  been  so  thoroughly  in 
earnest  as  to  force  a  deadlock  between  the  Chambers,  the  Senate  could 
not  have  refused  its  consent  to  a  dissolution,  and  would  certainly  have 
been  obliged  to  give  way  if  the  elections  had  resulted  in  a  victory  for  the 
cabinet. 

1  Since  this  was  written  the  Briand  ministry  resigned  on  a  vote  iu  the 
Senate  in  March,  1913. 


THE  SENATE.  25 

As  a  rule  the  Senate  does  not  decide  the  fate  of  the 
ministries,  and  hence  cannot  control  their  policy.  The 
result  is  that  without  sinking  to  the  helplessness  of  the 
English  House  of  Lords,  it  has  become  a  body  of  sec- 
ondary importance.1  At  one  time  it  stood  very  low 
in  public  esteem,  on  account  of  its  origin ;  for  it  was 
created  by  the  Reactionaries  in  the  National  Assembly, 
and  was  regarded  as  a  monarchical  institution  ;  and  even 
after  the  greater  part  of  its  seats  were  occupied  by  Re- 
publicans, it  was  suspected  of  being  only  half-heartedly 
in  favor  of  the  republican  form  of  government.  Its 
condemnation  of  Boulanger  increased  its  popularity 
by  making  it  appear  a  real  bulwark  of  the  Republic 
against  the  would-be  dictator ;  but  the  prejudice 
against  it  has  by  no  means  disappeared,  and  the  ex- 
treme Radicals  have  never  ceased  to  demand  its  abo- 
lition, although  conservative  feeling  in  France  will 
doubtless  remain  strong  enough  to  prevent  such  a 
step.  How  great  the  influence  of  the  Senate  will  be 
in  the  future  is  not  easy  to  foretell.  Some  people 
were  of  opinion  that  with  life  members  gone,  many 
of  whom  had  been  distinguished  in  letters,  in  science, 
or  in  war,  it  would  lose  a  good  deal  of  its  prestige. 
To  some  extent  this  fear  has  been  realized.  But,  on 
the  other  hand,  men  of  mark  are  still  elected,  and. 
now  that  the  Senate  is  not  afraid  of  being  thought 
lukewarm  or  hostile  to  the  Republic,  and  does  not  feel 

1  In  his  Essays  on  Government  (chap,  i)  the  writer  has  tried  to  prove 
that  this  must  necessarily  be  the  condition  of  one  of  two  chambers  wher- 
ever the  cabinet  is  responsible  to  the  other ;  and  that  the  cabinet  cannot 
in  the  long  run  be  responsible  to  both. 


26  FRANCE. 

its  existence  seriously  threatened,  it  has  acquired  more 
boldness  and  energy.1  It  is  highly  improbable,  more- 
over, that  it  will  become  utterly  powerless,  so  long  a? 
the  deputies  are  divided  into  a  number  of  political 
groups,  and  the  ministers  are  not  able  to  speak  with 
authority  as  the  leaders  of  a  great  and  united  party. 

Although  the  Senate  has  little  or  no  share  in  directing 

the  policy  of  the  cabinet,  it  must  not  be  supposed  that 

it  is  a  useless  body.    On  the  contrary,  it  does  very  valua- 

ble work  in  correcting  the  over-hasty  legislation  of  the 

other  Chamber,  and  in  case  of  disagreement  often  has 

its  own  way  or  effects  a  compromise.2 

^  The  two  Chambers  meeting  in  joint   session  form 

what  is  called  the  National  Assembly,  which, 

TheNa-  .  .     J\ 

As  U'e-ka«a_seen,  has  power  to  revise  the  con- 
* 


Assembly.         . 

stitutional  laws.     It  has  one  other  function, 


that  of  electing  the  President  of  the  Republic. 
/  officer  is  chosen  for  seven  years,  ana  is  re- 

dent  of  the  eligible;3  the  only  limit  on  the  choice  of  a 
candidate  being  found  in  the  constitutional 
law  of  August  14,  1884,  which  excludes  all  members 
of  families  that  have  ever  reigned  in  France, — a  pro- 
vision dictated  by  the  fear  that,  like  Napoleon  III.,  a 
prince  might  use  the  presidency  as  a  step  to  the  throne. 
The  President  is  at  the  head  of  the  Republic,  but  he 
lives  and  travels  in  a  style  that  is  almost  regal,  for  the 
conception  of  a  republic  as  severe,  simple,  and  econom- 

1  Dupriez,  vol.  ii.  pp.  382-83.     The  present  position  and  the  probable 
future  of  the  Senate  are  discussed  by  Saleilles,  op.  cit.y  pp.  37-52. 

2  Dupriez,  vol.  ii.  pp.  413-15. 

«  Const.  Law  of  Feb.  25,  1875,  Art.  2. 


THE  PRESIDENT.  27 

ical  has  changed  very  much  in  France  since  the  second 
Empire  taught  the  nation  extravagance.1 

The  duties  of  the  President,  like  those  of  every  chief' 
magistrate,  are  manifold.  He  is  the  executive  Hia  func_ 
head  of  the  nation,  and  as  such  executes  the  tlons* 
laws,  issues  ordinances,2  and  appoints  all  the  officers  of 
the  government.8  He  has  also  certain  functions  of  a 
legislative  character,  but,  except  for  the  right  of  initi- 
ative in  legislation,  these  are  not  in  fact  very  exten- 
sive. He  has  no  veto  upon  the  laws,  and  although 
he  may  require  the  Chambers  to  reconsider  a  bill,  the 
right  has  never  been  exercised.4  With  the  consent  of 
the  Senate  he  can  dissolve  the  Chamber  of  Deputies,5 
but  this  power  has  also  fallen  into  disuse,  because  the 
members  of  his  cabinet  are  very  much  under  the  control 
of  the  deputies,  who  dread  the  risk  and  expense  of  an 
election ;  and,  in  fact,  a  dissolution  has  not  taken  place 
since  President  MacMahon's  unsuccessful  attempt  to  use 
it  in  1877  as  a  means  of  getting  a  Chamber  in  sym- 
pathy with  his  views.  The  President  has  power  to  make 
treaties  ;  but  treaties  of  peace,  of  commerce,  those  which 
burden  the  finances,  affect  the  persons  or  property  of 
French  citizens  in  foreign  countries,  or  which  change 
the  territory  of  France  (in  other  words,  all  the  more  im- 

1  Cf.  G.  Channes,  Nos  Fautes,  Letter  of  Jan.,  1885 ;  Theodore  Stan- 
ton  in  the  Arena,  Oct.,  1891. 

2  For  the  nature  of  this  power,  see  pp.  42-44,  infra. 
8  Const.  Law  of  Feb.  25,  1875,  Art.  3. 

4  Const.  Law  of  July  16,  1875,  Art.  7 ;  Dupriez,  vol.  ii.  p.  369.  It 
is  not  likely  to  be  used  unless  after  the  bill  has  passed  the  cabinet  that 
favored  it  has  resigned,  and  another  hostile  to  it  has  come  in. 

6  Const.  Law  of  Feb.  25, 1875,  Art.  5. 


28  FRANCE. 

portant  ones),  require  the  ratification  of  the  Chambers.1 
A  declaration  of  war  also  requires  their  consent ; 2  but 
as  a  matter  of  fact  the  government  managed  to  wage 
war  in  Tunis  and  Tonquin  without  any  such  consent, 
alleging  at  first  that  the  affair  was  not  a  war,  and 
afterwards  defending  itself  on  the  ground  that  the  Par- 
liament by  voting  credits  had  virtually  sanctioned  its 


course.3 


Unlike  the  President  of  the  United  States,  the  French 
President  is  not  free  to  use  his  powers  aecord- 

His  Powers      .  ,  .  ,  „         .  , 

are  really      ing  to  his  own   judgment,  tor  in  order  to 

exercised  by  i         i  •         •      i  i  PIP  p         i  • 

theministere  make  mm  independent  or  the  fate  or  cabi- 

in  his  name.  i  i  • 

nets,  and  at  the  same  tune  to  prevent  his 
personal  power  from  becoming  too  great,  the  constitu- 
tional laws  declare  that  he  shall  not  be  responsible  for 
his  official  conduct,  except  in  case  of  high  treason,  and 
that  ah1  his  acts  of  every  kind,  to  be  valid,  must  be 
countersigned  by  one  of  the  ministers ;  and  thus,  like 
the  British  monarch,  he  has  been  put  under  guardian- 
ship and  can  do  no  wrong.4  When,  therefore,  we  speak 
of  the  powers  of  the  President,  it  must  be  remembered 
that  these  are  really  exercised  by  thejninisters,  who  are 
responsible  to  the  Chamber  of  Degutigs./  The  Presi-* 
dent,  indeed,  is  not  usually  present  at  the  cabinet  con- 
sultations (conseils  de  cabinet)  in  which  the  real  policy 
of  the  government  is  discussed,  and  as  a  rule  he  pre- 
sides only  over  the  formal  meetings  (conseils  des  mi" 

1  Const.  Law  of  July  16, 1875,  Art.  8. 

3  Id.,  Art.  9. 

»  See  Lebon,  Frankreich,  pp.  46,  47. 

*  Const.  Law  of  Feb.  25,  1875,  Arts.  3  and  6. 


THE  PRESIDENT.  29 

nistres)  held  for  certain  purposes  specified  by  law.1  He 
has  power,  it  is  true,  to  select  the  ministers,  and  in  this 
matter  he  can  use  his  own  discretion  to  some  extent,  but 
in  fact  he  generally  intrusts  some  one  with  the  forma- 
tion of  a  cabinet,  and  appoints  the  ministers  this  man 
suggests.2  His  duty  in  these  cases  is  not,  however,  as 
simple  as  that  of  the  English  King,  because,  for  reasons 
that  will  be  discussed  in  the  next  chapter,  there  is  usually 
on  the  fall  of  a  cabinet  no  leader  of  a  victorious  oppo- 
sition to  whom  he  can  turn.  A  good  deal  of  tact  and 
skill  is  sometimes  required  at  cabinet  crises,  and  it  is 
said  that  on  one  occasion  the  formation  of  a  ministry 
was  due  to  the  personal  influence  of  President  Carnot.3 

Sir  Henry  Maine  makes  merry  over  the  exalted  office 
and  lack  of  power  of  the  President.  "  There  is,"  he 
says,  "  no  living  functionary  who  occupies  a  more  pitia- 
ble position  than  a  French  President.  The  old  kings 
of  France  reigned  and  governed.  The  Constitutional 
King,  according  to  M.  Thiers,  reigns,  but  does  not 
govern.  The  President  of  the  United  States  gov- 
erns, but  he  does  not  reign.  It  has  been  reserved  for 
the  President  of  the  French  Republic  neither  to  reign 
nor  yet  to  govern."  4 

At  first  sight  the  situation  does,  indeed,  appear  some- 
what irrational.  When  the  head  of  the  state  is  desig- 

1  Lebon,  Frankreich,  p.  53  ;    Dupriez,  vol.  ii.  pp.  350-51  and  367- 
68,  states  that  the  President  is  often  present  when  important  matters  are 
discussed,  but  cannot  influence  the  decision. 

2  Dupriez,  vol.  ii.  p.  340. 

8  See  "  France  under  M.  Constans,"  in  Murray's  Magazine  for  May, 
1890. 
*  Popular  Government,  p.  250. 


30  FRANCE. 

nated  by  the  accident  of  birth  it  is  not  unnatural  to 
make  of  him  an  idol,  and  appoint  a  high  priest  to 
speak  in  his  name ;  but  when  he  is  carefully  selected 
as  the  man  most  fit  for  the  place,  it  seems  a  trifle  illo- 
gical to  intrust  the  duties  of  the  office  to  some  one  else. 
By  the  constitution  of  Sieyes  an  ornamental  post  of  a 
similar  character  was  prepared  for  the  First  Consul,  but 
Napoleon  said  he  had  no  mind  to  play  the  part  of  a 
pig  kept  to  fatten.  In  government,  however,  the  most 
logical  system  is  not  always  the  best,  and  the  anpma- 
lo^us^position  of  the  President  has  saved  France  from 
the  danger  of  nis  frying  to  make  himself  a  dictator, 
while  thefact  that  he  is  independent  of  the  changing 
moods  of  the  Chambers  has  given  to  the  Eepublic  a 
dignity  and  stability  it  had  never  enjoyed  before.  It 
is  a  curious  commentary  on  the  nature  of  human  am- 
bition, that  in  spite  of  the  small  power  actually  wielded 
by  the  President  in  France,  the  presidential  fever  seems 
to  have  nearly  as  strong  a  hold  on  public  men  as  in  this 
country. 

Before  proceeding  to  consider  the  ministers,  there  is 

The  Conseii   one  °^her  institution  which  claims  attention 

on  account  of  its  past  rather  than  its  present 

position.      This  is  the   Conseii  d'Etat  or  Council  of 

State,1  a  body  whose  importance  has  varied  a  great  deal 

1  Aucoc,  Conferences  sur  le  Droit  Adm.,  liv.  ii.  ch.  i.  §  3 ;  Ducrocq, 
Cours  de  Droit  Adm.,  tit.  i.  ch.  i.  sec.  i.  §  iii.  ;  Bceuf,  Resume  sur  le  Droit 
Adm.,  ed.  of  1895,  p.  32  et  seq.  ;  cf.  Lebon,  Frankreich,  pp.  96-98;  Du- 
priez,  vol.  ii.  pp.  285-316,  passim,  and  pp.  481-92  ;  Goodnow,  Comparative 
Administrative  Law,  vol.  i.  pp.  107-13.  See  also  articles  entitled  "  Le 
Conseii  d'Etat  et  les  Projets  de  Rdforme,"  by  Varagnac,  Revue  des  Deux 
Mondes,  Aug.  15  and  Sept.  15, 1892. 


THE  COUNCIL  OF  STATE.  81 

at  different  times.  Under  Napoleon  I.,  and  again  dur* 
ing  the  second  Empire,  in  addition  to  the  possession  of 
executive  functions,  it  was  a  real  source  of  legislation ; 
while  at  the  time  of  the  Restoration  and  the  Monarchy 
of  July  it  became  what  it  is  to-day,  a  council  with  high 
attributes,  but  very  little  authority.  Except  as  a  court. 
of  administrative  justice.1  it  has  now  lost  most  of  its 
influence ;  for  although  it  must  be  consulted  before 
certain  classes  of  ordinances  can  be  issued,  and  may  be 
consulted  on  other  administrative  matters,  its  advice 
need  never  be  followed ;  and  in  fact  the  habit  of  con- 
sulting it  is  said  to  have  become  little  more  than  a  mere 
form.2  The  legislative  functions  of  they  Council  have 
faded  even  more  completely  to  a  shadow,  as  is  proved 
by  the  fact  that  while  the  Government  or  either  of  the 
Chambers  may  seek  its  aid  in  the  framing  of  statutes, 
the  privilege  is  rarely  exercised  by  the  ministers,  scarcely 
at  all  by  the  Senate,  and  never  by  the  Chamber  of 
Deputies. 

The  members  of  the  Council  are  divided  into  several 
classes,  but  those  belonging  to  the  most  important  class, 
and  the  only  ones  who  can  vote  when  the  Council  sits 
as  a  court,  are  appointed  and  dismissed  at  will  by  the 
President  of  the  Republic.3 

1  For  its  functions  of  this  nature,  see  pp.  55-61,  infra. 

3  "La  Rdforme  Administrative  — La  Justice,"  by  Vicomte  d'Avenel, 
Revue  des  Deux  Mondes,  June  1,  1889,  pp.  597-98. 

3  The  other  members  are  also  appointed  by  the  President  subject  to 
certain  conditions,  but  as  he  can  dismiss  any  of  them,  their  tenure  of  office 
depends  on  the  pleasure  of  the  cabinet,  and  in  fact  by  means  of  resigna- 
tions or  removals,  most  of  the  councilors  were  changed  in  1879  in  order 
to  make  the  council  Republican.  —  "  Le  Conseil  d'Etat,"  Varagnac, 
Revue  des  Deux  Mondes,  Sept.  15,  1892,  p.  295. 


32  FRANCE. 

In  a  parliamentary  system  the  ministers  have  two 
The  minis-  distinct  functions.  One  of  these  is  the  same 
as  that  of  the  members  of  the  President's 
Cabinet  in  the  United  States,  and  consists  of  tine  man- 
agement of  the  departments  of  the  administration. 
The  other  is  the  duty  of  representing  the  government  in 
the  Chambers,  urging  the  adoption  of  its  measures,  and 
defending  its  policy  against  the  attacks  of  its  adversa- 
ries. These  two  functions  are  not  necessarily  united, 
and  in  fact  it  has  been  a  common  habit  in  some  coun- 
tries to  appoint  ministers  without  portfolios,  as  it  is 
called,  that  is,  without  any  executive  duties  at  all,  in 
order  that  they  may  devotex  their  %hole  energy  to  the 
battles  in  Parliament.1  Although  there  is  nothing  to 
prevent  such  a  practice  in  France,  it  is  not  followed 
to-day,  each  minister  being  at  the  head  of  a  particular 
branch  of  the  administration.  The  number  of  depart- 
ments, however,  and  the  distribution  of  the  public  busi- 
ness among  them  is  not  fixed  by  law,  but  is  regulated 
from  time  to  time  by  decree  of  the  President  of  the 
Republic.  The  number  of  ministers  is,  therefore,  con- 
stantly liable  to  change  according  to  the  immediate 
needs  of  the  public  service.  At  present  there  are  twelve 
departments  or  ministries  :  those  of  the  Interior ;  of 
Justice;  of  Foreign  Affairs;  of  Finance;  of  War;  of 
the  Navy ;  of  Education  and  the  Fine  Arts ;  of  Pub- 
lic Works ;  of  Labor ;  of  Commerce,  Industry,  and 

1  This  practice  virtually  exists  in  England,  because  some  of  the  offices 
held  by  the  ministers,  such  as  that  of  First  Lord  of  the  Treasury,  and 
that  of  Chancellor  of  the  Duchy  of  Lancaster,  involve  no  administrative 
duties. 


THE  MINISTERS.  33 

Posts  and  Telegraphs ;    of  Agriculture ;   and   of  the 
Colonies.1 

The  constitutional  law  of  February  25,  1875  (Art. 
6),  declares  that  the  ministers  are  collectively  Their  re- 
responsible  to  the  Chambers  for  the  general  g^bility' 
policy  of  the  government,  and  individually  for  ( 
their  personal  acts.  The  object  of  this  clause  was,  of 
course,  to  establish  the  parliamentary  system,  and  in 
fact  the  French  ministry  is  responsible  to  the  Chamber 
of  Deputies,  as  the  English  is  to  the  House  of  Com- 
mons, and  resigns  on  a  hostile  vote  on  any  matter  of 
importance.  Except,  indeed,  for  the  Ministers  of  War 
and  of  the  Navy,  who  are  usually  military  men v  the 
cabinet  officers  are  almost  always  selected  from  among 
the  members  of  Parliament,2  although  the  reason  for 
this  practice  in  England  does  not  apply  in  France, 
because  the  ministers  have  a  right  to  be  present  and 
speak  in  either  Chamber,  whether  members  of  it  or  not.3 

But  in  order  to  understand  fully  the  position  of  the 
French  ministers,  and  their  relation  to  the 
Parliament,  it  is  necessary  to  realize  their 
enormous  power,  and  this  is  due  largely  to 
three  causes,  —  the  paternal  nature  of  the  government, 
the  centralization  of  the  state,  and  the  possession  by 
the  executive  of  authority  that  in  an  Anglo-Saxon 

1  Boeuf,  Resume,  ed.  of  1895,  pp.  22,  23.     The  last  ministry,  that  of 
the  Colonies,  was,  however,  created  by  statute  in  1894,  and    as  Bojuf 
remarks,  the  Chambers  can  always  prevent  the  creation  of  a  ministry  by 
refusing  to  make  the  necessary  appropriations. 

2  Dupriez,  vol.  ii.  p.  336. 

3  Const.  Law  of  July  16, 1875,  Art.  6.   In  practice  this  privilege  is  also 
accorded  to  their  under-secretaries.    Lebon,  Frankreich,  p.  52. 

VOL.  i. 


84  FRANCE. 

country  would  be  lodged  with  the  legislature  or  the 
courts  of  law. 

On  the  first  of  these  matters,  the  paternal  nature  of 
the   government,    there  is  no  need  to  dwell 

Paternal  na-  ,  .  A  ,, 

ture  of  the    at    length.      All   governments   are   growing 

government.  _  .  IP 

more  paternal  at  the  present  day,  tor  a  re- 
action has  set  in  against  the  extreme  laissez-faire 
doctrines  preached  by  Adam  Smith,  John  Stuart  Mill, 
and  the  English  political  economists  of  the  earlier 
school.  There  is  a  general  tendency  to  restrain  the 
liberty  of  the  individual  and  subject  him  to  govern- 
mental supervision  and  control.  Such  control  and 
supervision  are  traditional  in  France,  and  far  exceed 
anything  to  which  we  are  accustomed  in  this  country. 
All  trades  and  occupations  are  there  subject  to  a  great 
deal  more  police  inspection  than  with  us.  They  require 
more  generally  to  be  licensed,  and  are  regulated  and 
prohibited  by  the  administrative  officials  with  a  much 
freer  hand.  And  although  the 
the  right  of  holdingpublic_meetings 


rightTof  asj^ciajjgn^jsjtill  very 

limited,  for  no  society  of  more  than  twenty  persons, 
except  business  companies,  and  associations  of  persons 
pursuing  the  same  profession  or  trade,  can  be  formed 
without  the  permission  of  the  Minister  of  the  Interior 
or  the  prefect  of  the  department.1  It  is  easy  to  see 
how  much  power  all  this  paternalism  places  in  the 
hands  of  the  administration. 

An  explanation  of  the   centralization  of   the  state 
entails  a  brief  survey  of  local  government;  and  here 

1  Lebon,  Frankreich,  pp.  32-39  ;  Ducrocq,  tit.  ii.  ch.  iii.  ;  cb.  iv.  sec.  iii. 


LOCAL  GOVERNMENT.  85 

we  meet  with  a  deeply  rooted  French  tradition,  for  cen- 
tralization was  already  great  under  the  old  re-  Centraiiza- 
gime,  and  although  the  first  effect  of  the  Rev-  tion- 
olution  was  to  place  the  administration  of  local  affairs 
under  the  control  of  independent  elected  bodies,  the 
pressure  of  foreign  war,  and  the  necessity  of  maintain- 
ing order  at  home,  soon  threw  despotic  power  into  the 
hands  of  the  national  government.  Under^Japoleon 
this  power  be^mejgrystallize^in  a  permanent  form,  amj 
feratjye  system  ^a^estal^hia,more  perfect^ 
more  effective^ajiijJLJj^-^ain^^ime  more  centralized 
thatt-^hat—whjch  had  exjsjeiL_under 
The  outward  form  of  the  Napoleonic  system  has  been 
continuously  preserved  with  surprisingly  little  change, 
but  since  1830  its  spirit  has  been  modified  in  two  dis- 
tinct ways :  first,  by  means  of  what  the  French  call 
deconcentration,  that  is,  by  giving  to  the  local  agents 
of  the  central  government  a  greater  right  of  independ- 
ent action,  so  that  they  are  more  free  from  the  direct 
tutelage  of  the  ministers ;  second,  by  a  process  of  true 
decentralization,  or  the  introduction  of  the  elective 
principle  into  local  government,  and  the  extension  of 
the  powers  of  the  local  representative  bodies.v  But 
although  the  successive  rulers  of  France  have  pursued 
this  policy  pretty  steadily,  the  progress  of  local  self- 
government  has  been  far  from  rapid.2  One  reason  for 

1  For  a  short  but  vigorous  comment  on  Napoleon's  system,  see  G.  L. 
Dickinson,  Revolution  and  Reaction  in  Modern  France,  ch.  ii. 

2  On  the  subject  of  local  government,  I  have  used  Aucoc,  Conferences, 
3d  ed.  ;   Bo3uf,  Resume,  ed.    of  1895  ;   Leroy-Beaulieu,  A  dm.  Locale  en 
France  et  en  Angleterre  ;  Lebon's  two  works  on  France  ;  Goodnow,  Comp. 
Adm.  Law.     There  is  a  popular  account   in  Block,  Entretiens  familiers 
sur  VAdm.  de  notre  pays. 


\\3d^ 

^\  v 

/W'  this  is 


FRANCE. 
G> 


^he_habilLof^  looking  to  the  central  authorities  for 
Y)         guidance  in  ^ILjnatjers^    Another^is  aTiear^n  the  part 
of    the    government    of    furnishing    its   enemies   with 
which  might  be  usgd  to  oryafflze-^a^op- 


j)psition,  —^  fear  that  takes  shape  to-day  in  provisions 
fortnclclmg  the  local  elected  councils  to  express  any 
opinions  on  general  politics,  or  to  communicate  with 

by 


third  cause  of  the  fee^_state_ofjx)cal  self- 
Pjstig^^^  that_tbe  Revolu- 

tiorT~of~1789  jlestroyed-  all-  the-  existing  local  divisions 
except  the^  commune,  and  replaced  them  by  artificial 
districtsjvWch^^ 

so  that  the  ^cjninjine-is_tlie--QRly  true  qentre  of  local  life 
in  the  republic.1  A  fourth,  and  perhaps  the  most 
potent  cause  of  all,  is  the  dread  of  disorder  which  is 
constantly  present  in  the  minds  of  Frenchmen,  and 
makes  them  crave  a  master  strong  enough  to  cope  with 
any  outbreak. 

France  is  divided  into  eighty-six  departments,  at  the 
Local  gov-  head  of  each  of  which  is  a  prefect,  appointed 
The  depart-  and  removed  at  pleasure  by  the  President  of 
the  prefect,  the  Republic,  but  in  reality  nominated  by  the 
Minister  of  the  Interior.  The  office  is,  indeed,  regarded 
as  distinctly  political,  and  the  incumbent  is  often  re- 
placed when  the  minister  changes.  The  prefect,  who 
is  by  far  the  most  important  of  the  local  officials,  occu- 
pies a  double  .position,  for  he  is  the  agent  of  the 
central  government  in  regard  to  those  matters  of 
general  administration  which  are  thought  to  concern 

1  Most  of  the  existing  communes  were  in  fact  created  in  1789. 


LOCAL  GOVERNMENT. 


37 


the  whole  country,  and  at  the  same  time  he  is  the 
executive  officer  of  the  department  for  local  affairs. 
In  the  former  capacity  he  is  in  theory  the  immediate 
subordinate  of  the  Minister  of  the  Interior,  but  since 
his  duties  extend  to  all  branches  of  the  administration, 
he  corresponds  in  practice  directly  with  any  minister  in 
whose  sphere  of  action  the  matter  with  which  he  is 
called  upon  to  deal  may  lie.  His  authority  as  the 
agent  of  the  central  government  is  not,  however,  the 
same  in  all  cases.  Sometimes  he  is  absolutely  subject 
to  the  orders  of  the  jn  misters.,  This  is-true./when  he 
''executes  genera.]  lafws  and  ordinances  ;  t>ut  when,  for 
example,  he  directsjbhe  ppEce_  ofthedeartmen  or 
superyisesthe  subordinate  local 
on  hjq  ^mi  responsibility,  and  hisjjcts  can  b^  overruled 


by^th^ce^tralgovernment  only  in  case  they  are  con- 
trary tf>  law,  oy-gryfifjs'ft"'  tn  ™™  pontiff  -***>  flrajn^t^nf 
the^persons  affected  by^Sienu  In  pursuance  of  the 
policy^of~ltecDncentfation,  the  prefect  has  been  given 
an  independent  authority  of  this  kind  over  a  large 
number  of  subjects,  and  he  was  intended  to  exercise  his 
own  judgment  in  regard  to  them,  but  the  influence 
and  pressure  of  the  deputies  has,  it  is  said,  induced 
him  to  shirk  responsibility  as  much  as  possible  by  refer- 
ring doubtful  questions  to  the  ministers,  and  hence  the 
centralization  has  not  been  diminished  as  much  as  was 
.expected.1  In  matters  of  general^  administration,  the 
prefect  is  assisted  by  a  prefectoral 
fqur  TTipTT^>rsr^ppmntpfl  by  tlift  President  of  the  Re- 
rublic  ;  but,  except  when  it  sits  as  an  administrative 

1  Channes,  Letter  of  October  1,  1884. 


38  FRANCE. 

court,  the  functions  of  this  body  are  almost  altogether 
advisory,  and  their  use  has  become  scarcely  more  than 
a  form.1 

As  the  executive  officer  for  local  affairs,  the  prefect 
The  General  carries  out  the  resolutions  of  the  General 
Council.  This  is  the  representative  assembly 
of  the  department,  and  is  elected  by  universal  suffrage, 
one  of  the  members  being  chosen  in  each  canton  for 
six  years,  and  half  of  them  being  renewed  every  three 
years.  The  authority  of  the  body  is  jealously  limited. 
Its  competence  is  almost  entirely  confined  to  affairs 
that  are  deemed  to  have  a  strictly  local  interest,2  and 
even  in  regard  to  these  its  powers  are  not  absolute,  for 
its  votes  on  certain  matters  can  be  annulled  by  the 
President  of  the  Republic,  and  its  budget,  that  is  the 
annual  tax  levy  and  list  of  appropriations,  is  not  valid 
without  his  approval.  Although  the  Council  has  the 
right  of  final  decision  in  a  considerable  class  of  sub- 
jects, its  actual  power  over  them  is  curtailed  in  a  variety 
of  ways.  In  the  first  place  it  does  not  carry  out  its 
own  votes,  but  their  execution  is  intrusted  to  an  agent 
of  the  central  government,  the  prefect,  who  appoints 
all  the  officials,  manages  the  public  institutions,  and 
signs  the  orders  for  all  payments  of  money ;  the  direct 
control  of  the  council  over  his  performance  of  these 
duties  extending  only  to  the  election  of  a  standing 
commission  which  has  little  more  than  a  right  of  inspec- 

1  Vicomte  d'Avenel,  "La  Re'forme  Administrative,"  Revue  des  Deux 
Mondes,  June  1,  1889,  p.  596. 

2  Its  functions  in  relation  to  the  general  administration  consist  in  ap- 
portioning certain  direct  taxes,  in  giving  its  advice  when  asked,  and  in 
expressing  its  wishes  on  matters  not  connected  with  general  politics. 


LOCAL  GOVERNMENT.  39 

tion.1  In  the  second  place,  the  prefect  has  an  opportu- 
nity to  exert  a  great  deal  of  influence  over  the  action 
of  the  Council,  for  not  only  has  he  a  right  to  address 
it,  but  he  prepares  the  budget  and  all  other  business, 
and  in  fact  it  is  not  allowed  to  act  on  any  matter  until 
it  has  heard  his  report.2  Moreover  the  Council  is  only 
permitted  to  sit  a  very  short  time.  It  has  two  regular 
sessions  a  year,  whose  duration  is  limited  one  to  a 
month,  the  other  to  a  fortnight,  and  although  extra 
sessions  can  be  held  they  must  not  exceed  one  week 
apiece.  Finally  its  very  existence  is  insecure,  for  it  can 
be  dissolved  by  the  chief  of  the  state.  In  general  it 
may  be  said  that  in  matters  falling  within  its  province 
the  General  Council  cannot  do  everything  it  wants,  but 
can  prevent  almost  anything  it  does  not  want.  Its 
financial  resources  are  not  large,3  and  its  attention  is 
confined  for  the  most  part  to  the  construction  of  roads, 
subventions  to  railroads,  and  the  care  of  schools,  insane 
asylums,  and  other  institutions  of  a  similar  character. 

At  one  time  a  hope  was  entertained  that  politics 
might  be  kept  out  of  the  general  councils,  but  it  has 
not  been  fulfilled,  the  departmental  elections  being 
regularly  conducted  on  party  lines.4  It  has  therefore 


1  The  Council  can  delegate  to  the  commission  a  somewhat  indefinite 
class  of  functions,  but  it  is  not  in  fact  a  body  of  much  importance.     Du- 
priez,  vol.  ii.  pp.  467-68. 

2  Aucoc,  p.  282. 

8  Almost  its  only  source  of  revenue  is  the  addition  of  a  limited  sum  to 
the  direct  state  taxes. 

4  Boze*rian,  in  his  Etude  sur  la  Revision  de  la  Constitution  (pp.  89-90), 
attributes  this  to  the  fact  that  the  local  assemblies  take  part  in  the  elec- 
tion of  senators. 


40  FRANCE. 

been  thought  best  to  intrust  the  supervision  of  the 
communes  largely  to  the  central  government  and  its 
representative  the  prefect,  rather  than  to  the  councils 
with  their  partisan  bias,  and  this,  of  course,  deprives 
the  latter  of  a  part  of  the  importance  they  would  other- 
wise possess.1 

The  next  local  division  is  the  arrondissement.  This 
The  arron-  ^s  a  mere  administrative  district  without  cor- 
dissement.  p0rate  personality,  with  no  property,  revenues, 
or  expenses  of  its  own,  and  although  it  has  a  sub-pre- 
fect and  an  elected  council,  neither  of  them  has  much 
power.  In  fact  it  has  been  proposed  to  abolish  the 
arrondissement  altogether. 

The  canton,  which  is  the  next  subdivision,  is  really  a 
The  can-       judicial  and  military  rather  than  an  admin- 
istrative district,  and  therefore  does  not  con- 
cern us  here. 

We  now  come  to  the  communes,  which  are  the  small- 

Thecom-       es^   ^oca^  entities,  but  differ  enormously  in 

area  and  population.     They  vary  in  size  from 

twenty  acres  to  over  a  quarter  of  a  million,  and  they 

run  all  the  way  from  a  hamlet  with  a  dozen  inhabitants 

to  large  cities ;  yet  with  the  exception  of  Paris  and 

Lyons  they  are  all  governed  on  one  plan.     The  officer 

in  the  commune  whose  position  corresponds 

to  that  of  the  prefect  in  the  department  is 

the  mayor.     He  acts  in  the  same  way  both  as  agent  of 

the  central  government,  and  as  the  executive  head  of  the 

1  By  the  law  of  1884  on  municipalities,  part  of  the  supervision  over  these 
bodies,  which  had  previously  been  in  the  hands  of  the  general  councils, 
was  withdrawn  and  given  to  the  prefect. 


LOCAL  GOVERNMENT.  41 

district,  but  whereas  in  the  prefect  the  former  character 
predominates,  the  mayor  is  chiefly  occupied  with  local 
matters.  It  is  largely  for  this  reason  that,  unlike  the 
prefect,  he  is  not  appointed  by  the  President,  but  since 
1884  has  been  elected  by  and  from  the  communal  coun- 
cil for  the  length  of  its  own  term.1  The  mayor  is, 
however,  by  no  means  free  from  control.  So  far  as  he 
acts  as  agent  of  the  central  government,  he  is  abso- 
lutely under  the  orders  of  the  prefect.  Nor  is  this  all. 
The  subject  of  communal  police,  which  includes  the 
public  health  and  other  matters  of  a  kindred  nature,  is 
considered  a  part  of  the  local  administration,  but  the 
acts  of  the  mayor  in  regard  to  it  can  be  annulled  by 
the  prefect,  who  has  also  power  in  many  cases  to  issue 
direct  orders  of  his  own.  Moreover  the  police  officials 
require  to  be  confirmed  by  the  prefect,2  and  can  be 
removed  only  by  him.3  But  even  these  extensive  pow- 
ers of  control  are  not  deemed  enough,  and  it  is  provided 
that  the  mayor  can  be  suspended  from  office  for  a 
month  by  the  prefect,  or  for  three  months  by  the  Min- 
ister of  the  Interior,  and  can  be  removed  altogether  by 
the  President  of  the  Republic. 

The  deliberative  organ  of  the  commune  is  the  com- 
munal council,  which  varies  in  size  from  ten  to  thirty- 
six  members,  and  is  elected  by  universal  suffrage  for 
four  years.  Its  authority  extends  to  all  communal 

1  The  office  is  an  honorary  one,  as  the  mayor  receives  no  salary. 

?  Or  sub-prefect. 

3  The  mayor  is  not  free  from  control  in  regard  to  other  matters  of 
local  interest,  for  his  accounts  must  be  submitted  for  approval  to  the  pre- 
fect, who  can  order  the  payment  of  any  expense  properly  authorized  if 
the  mayor  neglects  to  make  it. 


42  FRANCE. 

affairs,  except  that  it  has  nothing  to  do  with  the  broad 
subject  of  police,  although  that  is  regarded  for  other 
purposes  as  a  local  matter.  The  general  statute  on 
municipal  government  lays  down  the  general  princi- 
ple that  the  decisions  of  the  council  on  local  affairs, 
when  legally  made,  are  conclusive  without  the  approval 
of  any  superior  administrative  official,  but  in  a  subse- 
quent section  all  the  most  important  matters  are  spe- 
cially excepted  from  the  rule.  The  list  of  exceptions 
includes  almost  every  financial  measure,  the  construction 
of  roads  and  buildings,  and  the  sale  of  communal  prop- 
erty.1 The  council  has,  therefore,  very  much  less  power 
than  might  at  first  sight  be  supposed ;  and  in  order  to 
guard  against  any  attempt  on  its  part  to  exceed  these 
slender  privileges,  the  prefect  is  given  a  discretionary 
authority  to  suspend  it  for  a  month,  while  the  President 
of  the  Republic  can  dissolve  it  entirely,  and  appoint  a 
commission  with  limited  powers  to  rule  the  commune 
for  two  months,  when  a  new  election  must  take  place. 
The  general  laws  of  local  government  already  de- 
scribed do  not,  however,  cover  the  whole 
field,  because  a  dread  of  the  explosive  char- 
acter and  communistic  tendencies  of  the  democracy  of 
Paris  has  prevented  the  capital  from  enjoying  even  the 
measure  of  liberty  granted  to  other  towns.  The  city 
has,  indeed,  a  municipal  council  composed  of  eighty 
elected  members  and  endowed  with  most  of  the  usual 
powers,  and  a  general  council  for  the  department  with 
limited  powers,  composed  of  these  same  eighty  rein- 

1  The  official  who  has  power  to  approve  the  budget  can  also  inscribe 
therein  certain  obligatory  expenses. 


PARIS. 

forced  by  eight  suburban  members ;  but  the  executive 
authority  is  entirely  in  the  hands  of  the  central  govern- 
ment. It  is  lodged  in  part  with  the  mayors  of  the 
twenty  arrondissements,  who  are  appointed  directly  by 
the  President  of  the  Republic ;  but  chiefly  with  two 
prefects  appointed  in  the  same  way.  One  of  these, 
the  Prefect  of  the  Seine,  has  most  of  the  functions  of 
the  ordinary  prefect,  together  with  those  of  a  central 
mayor;  while  the  other,  the  Prefect  of  Police,  has 
charge  of  the  police,  and  is  directly  responsible  to  the 
Minister  of  the  Interior.1 

This  sketch  of  local  government  in  France  shows 
how  centralized  the  state  still  remains,  what  extensive 
supervision  and  control  the  administration  keeps  in  its 
own  hands,  and  how  slight  is  the  measure  of  real  local 
autonomy  if  measured  by  an  Anglo-Saxon  standard. 
In  fact,  the  central  government  still  makes  itself  contin- 
ually and  actively  felt  in  local  affairs,  and  this  is  for 
the  ministers  a  great  source  of  power,  but  also,  as  we 
shall  see  later,  a  cause  of  weakness. 

A  third  source  of  the  enormous  power  of  the  minis- 
ters in  France  is  the  possession  by  the  execu- 
tive   of   authority   that   in   an   Anglo-Saxon  and  judicial 
country  would  be  lodged  with  the  legislature  the  execu- 
or  the  courts  of  law.     This  requires  an  expla- 
nation, for  it  involves  some  of  the  most  strange  and 

1  In  Lyons  the  control  of  the  police  is  still  intrusted  to  the  Prefect  of 
the  Rhone  ;  in  Marseilles  it  is  in  charge  of  the  Prefect  of  Bouches-du- 
Rhone.  In  all  cities  of  over  40,000  people  the  organization  of  the  police 
is  fixed  by  decree  of  the  chief  of  the  state,  although  the  members  of  the 
force  are  appointed  as  in  other  communes. 


44  FRANCE. 

interesting  peculiarities  of  French,  and,  indeed,  of  con- 
tinental political  ideas. 

Let  us  take  first  the  legislative  authority  of  the  execu- 
tive in  France.  When  an  English  or  an  Ameri- 

Legislative  i       •  i  -i  • 

decrees  and    can  legislator  dratts  a  statute  he  tries  to  cover 

ordinances.  . 

all  questions  that  can  possibly  arise.  He  goes 
into  details  and  describes  minutely  the  operation  of 
the  act,  in  order  that  every  conceivable  case  may  be 
expressly  and  distinctly  provided  for.  He  does  this 
because  there  is  no  one  who  has  power  to  remedy 
defects  that  may  subsequently  appear.  If  the  law  is 
vague  or  obscure,  it  can  receive  an  authoritative  inter- 
pretation only  from  the  courts  by  the  slow  process  of 
litigation.  If  it  is  incomplete,  it  must  remain  so  until 
amended  by  a  subsequent  enactment.  In  some  cases,  it 
is  true,  an  officer  or  board  is  given  by  statute  power 
to  make  regulations.  The  Local  Government  Board 
and  our  boards  of  health  furnish  examples  of  this ; 
but  such  cases  are  exceptional,  and  most  Anglo-Saxons 
feel  that  the  power  is  in  its  nature  arbitrary,  and  ought 
not  to  be  extended  farther  than  is  necessary.  And  here 
it  is  important  to  distinguish  between  rules  issued  by  the 
head  of  a  department  for  the  guidance  of  his  subordi- 
nates and  the  regulations  of  which  we  are  speaking. 
The  former  are  merely  directions  given  to  the  officials 
for  the  purpose  of  instructing  them  in  their  duties,  and 
are  binding  on  no  one  else.  The  right  to  issue  them 
must  belong,  to  some  extent,  to  every  one  who  has  other 
persons  under  his  orders,  although  they  are  used  much 
more  systematically  in  France  than  in  the  United  States. 
The  regulations  with  which  we  are  concerned  here  are 


THE  ORDINANCE  POWER.  45 

of  quite  a  different  kind,  for  they  are  binding  on  all 
citizens  who  may  be  affected  by  them,  and  have,  in  fact, 
the  character  of  laws. 

In  America  the  authority  to  make  regulations  is  de- 
legated by  the  legislature  cautiously,  and  apart  from 
such  an  express  delegation  no  officer  of  the  govern- 
ment has  power  to  issue  any  ordinances  with  the  force 
of  law.  But  in  France  all  this  is  very  different.  Stat- 
utes that  do  not  concern  the  rights  of  a  man  against 
his  neighbor,  that  do  not,  in  other  words,  form  a  part 
of  the  Civil  Code,  are  often  couched  in  general  terms, 
and  enunciate  a  principle  which  the  Executive  is  to 
carry  out  in  detail.1  Sometimes  the  President  of  the 
Republic  is  expressly  given  power  to  make  regulations, 
but  even  without  any  special  authority  he  has  a  general 
power  to  make  them  for  the  purpose  of  completing  the 
statutes,  by  virtue  of  his  general  duty  to  execute  the 
laws.2  Such  regulations  in  France  are  called  acts  of 
secondary  legislation,  arid  the  ordinances  of  the  Presi- 
dent in  which  they  are  contained  are  termed  decrets. 
The  power  to  make  them  is  not,  however,  confined  to 
the  chief  of  the  state.  For  matters  of  inferior  grav- 
ity the  laws  often  confer  a  similar  authority  on  the  min- 
isters, the  prefects,  and  even  the  mayors,  and  in  this 

1  Dupriez  (vol.  ii.  p.  377),   after  remarking   this  difference  between 
English  and  French  legislation,  expresses  a  regret  that  the  French  Parlia- 
ment has  shown  a  tendency  of  late  years  to  go  more  into  details. 

2  On  the  power  to  issue  ordinances  in  France,  see  Ancoc,  Conferences, 
§§  52-57,  66,  91,  170  ;  Ducrocq,  Cours,  §§  61-66,  72-73,  109-10,  210-14  ; 
Goodnow,  vol.  i.  pp.  85-87. 

Before  issuing  certain  classes  of  ordinances  the  President  must  consult 
the  Council  of  State,  but  he  is  not  obliged  to  follow  its  advice. 


46  FRANCE. 

case  the  edicts  are  termed  arretes,  to  distinguish  them 
from  the  more  solemn  ordinances  of  the  President.1 
The  regulations  cannot,  of  course,  be  contrary  to  law, 
or  in  excess  of  the  authority  of  the  official  who  issues 
them.  If  they  are  so  and  infringe  private  rights,  a 
process  to  have  them  annulled  may  be  instituted  before 
the  administrative  courts,  and  in  certain  limited  cases 
the  ordinary  courts  can  also  refuse  to  apply  them.2 

So  much  for  the  power  of  the  executive  to  make  law, 
Appropria-  but  ^is  does  not  exhaust  its  encroachments 
tions.  on  wna£  we  jiave  learne(l  to  regard  as  the 

province  of  the  legislature,  for  it  is  less  strictly  held  to 
the^a^propiaatioDS TvoteoTpy  the^Cfiajnbers  than  is  the 
ease_with  us.  TO^vmm^i^sJ;tbajJs  to  say,  the  use  for 
one  purpose  of  appropriations  voted  for  another),  which 
were  an  abuse  under  the  Empire,  have,  indeed,  been 
abolished,  except  as  between  different  items  in  the  same 
chapter  of  the  annual  budget;  but  certain  chapters 
are  designated  each  year  to  which  additions  can  be 
made  by  decree  of  the  President  issued  with  the  con- 
sent of  the  council  of  ministers.  Moreover,  in  urgent 
and  unforeseen  cases  arising  when  Parliament  is  not  in 
session,  the  government  has  power  by  means  of  such  a 
decree,  not  only  to  incur  the  expenses  called  for  by  the 
emergency,  but  also  to  open  an  extraordinary  credit  on 
its  own  authority  and  borrow  the  money  that  it  needs.3 

1  Lebon,  Frankreich,  p.  23  ;  Aucoc,  Ducrocq,  ubi  cit. 

2  Laferriere,  Traite  de  la  Jur.  Adm.,  liv.  iii.  ch.  i.  sec.  n.  ;  liv.  vi.  ;  liv. 
vii.  ch.  i.  sec.  iv. 

8  In  both  cases  notice  of  the  decree  must  be  laid  before  the  Chambers 
within  fourteen  days  from  their  next  meeting.  (Lebon,  Frankreich,  p. 
162.)  It  is  worth  while,  moreover,  to  note  in  passing  that  there  is 


ENGLISH  AND  FRENCH  HISTORY.  47 

One  may,  perhaps,  be  pardoned  for  dwelling  at  some- 
what greater  length  on  the  judicial  powers  of  Judicial 
the  executive  in  France,  both  because  they  fhe^cu- 
are  so  little  understood  by  English-speaking  i 
people,  and  because  their  origin  may  be  traced  to  a 
tradition  which  has  its  roots  far  back  in  the  past. 

The  characteristic  difference  between  the  political 
history  of  England  and  that  of  France  is  to  Characteru 
be  found  in  the  fact  that  the  English,  though 
influenced  by  each  new  spirit  of  the  age, 
have  never  yielded  entirely  to  its  guidance,  tory* 
while  the  French  have  always  thrown  themselves  into 
the  current,  and,  adopting  completely  the  dominant 
ideas  of  the  time,  have  carried  them  to  their  logical 
results.  Thus,  in  the  Middle  Ages,  the  feudal  system 
never  became  fully  developed  in  England  as  it  did  in 
France.  Again,  when  absolute  monarchy  came  into 
vogue,  the  British  sovereign  was  not  able  to  acquire 
the  arbitrary  power  of  the  Bourbons.  And,  lastly, 
democracy  made  its  way  neither  so  rapidly  nor  so 
thoroughly  on  the  north  as  on  the  south  of  the  Chan- 
nel. The  result  is  that  in  France  the  institutions  of 
any  period  have  been  adapted  almost  exclusively  to 
the  wants  of  the  time  in  which  they  were  produced, 
and  in  the  succeeding  age  it  has  been  thought  necessary 
to  destroy  them  and  devise  new  ones  more  in  harmony 


no  effective  process  for  bringing  to  account  a  minister  who  exceeds  the 
appropriations.  He  can,  indeed,  be  impeached,  but  except  in  times  of 
great  excitement  this  would  not  be  done  if  the  money  had  been  expended 
for  public  purposes  ;  and  as  regards  civil  liability,  there  is  no  court  that 
has  power  to  compel  him  to  refund  the  sums  which  he  has  spent  illegally. 


48  FRANCE. 

with  the  new  conditions ; 1  whereas  in  England  there 
has  been  no  need  of  such  sweeping  changes,  and  it  has 
been  possible  to  preserve  in  a  modified  form  many  of 
the  most  important  features  of  the  government.  Hence 
the  permanence  and  continuity  of  the  political  system.2 
Let  us  inquire  how  these  facts  have  affected  the  devel* 
opment  of  judicial  and  administrative  institutions  in 
the  two  countries. 

The  Norman  kings  of  England  strove  deliberately  to 
check  the  growth  of  the  feudal  system,  and 
veiopment  their  successors  constantly  followed  the  same 
power  m  policy.  Now  the  essence  of  the  feudal  sys- 
tem consisted  in  the  blending  of  public  and 
private  law  by  making  all  political  relations  depend  on 
the  tenure  of  land ;  and,  in  fact,  according  to  the  strict 
feudal  theory,  no  man  had  direct  relations  with  any 
superior  except  his  immediate  overlord.  Every  great 
vassal  of  the  crown,  therefore,  had  jurisdiction  over  all 
the  tenants  on  his  estate,  which  he  exercised  by  holding 
a  court  of  his  own  for  the  administration  of  justice 
among  them.  The  English  kings  resisted  this  principle, 
and  tried  to  bring  their  power  to  bear  directly  on  all 
The  judicial  tne  People  °f  the  realm.  For  this  purpose 
system.  sheriffs  were  appointed  to  represent  the  crown 
in  the  counties,  and  what  was  of  more  permanent  im- 
portance, the  gravest  crimes,  actions  for  the  possession 

1  This  is  the  more  striking  because  the  French  are  in  some  ways  more 
conservative  than  the  English,  as,  for  example,  in  their  retention  to  the 
present  day  of  public  executions.  M.  Lebon  truly  remarks  (France  as 
If  Is,  p.  86)  :  "  People  have  no  idea  of  the  spirit  of  routine  and  conser- 
vatism which  prevails  in  France." 

*  Cf.  Freeman,  Growth  of  the  English  Constitution,  pp.  63-66. 


ENGLISH  CENTRALIZATION  JUDICIAL.  49 

of  land,  and  subsequently  other  matters,  were  brought 
within  the  jurisdiction  of  the  Curia  Regis.1  As  early 
as  the  reign  of  Henry  I.,  moreover,  royal  officers  were 
commissioned  to  travel  about  the  country  holding  court, 
a  practice  which  was  renewed  in  a  more  systematic 
form  by  Henry  II.,  and  has  continued  with  short  in- 
terruptions to  the  present  day.2  The  chief  object  of 
the  early  kings  in  sending  out  the  itinerant  justices,  as 
they  were  called,  was  no  doubt  financial;  for  their 
duties  consisted  in  assessing  taxes,  collecting  fines  for 
violation  of  the  law,  and  administering  justice,  which 
was  in  itself  a  source  of  no  small  profit  in  the  Middle 
Ages.3  The  functions  of  the  justices  in  the  collection 
of  revenue  grew,  however,  less  and  less  prominent,  but 
their  administration  of  justice  became  of  permanent 
importance,  and  in  regard  to  this  two  tendencies  were 
at  work.  In  the  first  place,  the  royal  judges  adopted 
new  methods  of  procedure  and  gradually  developed  the 
trial  by  jury,  while  the  baronial  courts  clung  to  the 
ordeal  and  other  barbaric  forms  of  trial.4  "  The  glad- 
some light  of  jurisprudence,"  as  Coke  called  it,  came 

1  See  Pollock  &  Maitland,  History  of  English  Law,  vol.  i.  pp.  85-87  and 
chs.  v.  and  vi. 

2  The  institution  of  traveling  judges  was  not  new.     It  had  been  used 
by  Charlemagne  (Hallam,  Middle  Ages,  ch.  ii.  part  ii.  5),  and  a  similar 
practice  was  employed  by  Alfred,  Edgar,  and  Canute  (Stubbs,  History 
of  England,  xi.  §§  127,  134).     On  the  itinerant  justices,  see  Stubbs,  Ib. 
xi.  127  ;  xii.  141,  145,  150  ;  xiii.  163  ;  xv.  235  ;  Gneist,  Englische  Ver- 
fassungsgeschichte,  pp.  148,  224-28,  305  (note),  318-19,  447.    Pollock  & 
Maitland,  vol.  i.  pp.  134,  149,  179  ;  Franqueville,  Le  Systems  Judiciaire 
de  la  Grande  Bretagne,  vol.  i.  pp.  149  et  seq.     The  royal  duty  of  sending 
the  justices  in  eyre  is  one  of  those  insisted  upon  in  Magna  Charta,  §  18. 

3  Stmbbs,  Ib.  xi.  127. 

*  Cf .  Stubbs,  Ib.  xiii.  164  ;  Gneist,  Ib.  p.  142. 
VOL.  *. 


50  FRANCE. 

with  the  king's  courts,  and  hence  it  is  not  surprising 
that  they  supplanted  the  baronial  courts,  and  in  time 
drew  before  themselves  all  the  important  lawsuits.  In 
the  second  place,  the  commissions  which  had  at  first 
been  issued  to  high  officials,  barons,  and  knights,  be- 
came confined  to  regular  judges,  and  about  the  time  of 
Edward  I.  were  given  only  to  the  members  of  the  royal 
courts  at  Westminster.1  The  same  body  of  judges, 
therefore,  expounded  the  law  in  all  parts  of  the  realm, 
and  hence  England,  alone  among  the  countries  of 
Europe,  developed  a  uniform  national  justice  called  the 
common  law.2  The  people  naturally  became  attached 
to  this  law  and  boasted  of  the  rights  of  Englishmen, 
while  the  courts  that  were  the  creators  and  guardians 
of^jbhe  law  became  strong  and  respected. 

The  very  fact  that  the  judicial  branch  of  the  govern- 
ment became  so  highly  developed  made  the 
istrative        centralization  of  the  administration  unneces- 

system.  AT-  i  •   •  • 

_  sary.  /  At  the  time  when  the  itinerant  justices 
first  went  on  circuit,  administration  in  the  modern 
sense  was  of  course  unknown,  and  such  local  affairs  as 
needed  attention  were  regulated  by  the  shire  moots 
and  other  local  meetings.3  The  sheriff,  indeed,  repre- 
sented the  crown,  but  his  powers  were  curtailed  more 
and  more,  until,  apart  from  his  command  of  the  mili- 
tary forces  of  the  county,  he  became  little  more  than 
an  officer  of  the  courts.4  When  the  local  administra- 

1  Gneist,  Englische  Verfassungsgeschichte,  p.  318  ;  Stubbs,  History  of 
England,  xv.  235. 

3  Cf.  Hallam,  Middle  Ages,  ch.  viii.  part  ii.  3. 

8  Stubbs,  Ib.  xv.  205. 

*  On  the  powers  of  the  sheriff,  see  Stubbs,  Ib.  xiii.  163,  xv.  204-7; 
Gneist,  Ib.  pp.  115-20,  297. 


FRANCE  CENTRALIZED  LATER.         51 

tion  grew  more  important,  it  was  confided  not  to  him, 
but  to  justices  of  the  peace,  who,  though  nominally 
selected  by  the  king,  were  never  strictly  under  his 
orders,  and  in  time  became  almost  completely  inde- 
pendent, except  for  the  purely  judicial  control  exercised 
by  the  Court  of  King's  Bench.1 

In  England,  therefore,  the  royal  power  came  early 
into   contact   with   the   people   all   over  the 
kingdom   by   means   of   the   courts   of   law,  meltoFthe 

11         •     i  •    •  i  i'ii  direct  royal 

and  the  judicial  system  became  highly  cen-  power  in 
tralized;  while  the  local  administrative  insti- 
tutions developed  slowly,  and  through  them  the  king's 
authority  was  little  felt.  In  France,  on  the  other  hand, 
the  course  of  events  was  very  different,  for  the  royal 
power  came  into  direct  contact  with  the  people  at  a  much 
later  date,  and  therefore  in  quite  another  form.  When 
the  feudal  system  became  established,  the  The  judicial 
great  vassals  set  up  their  own  courts  and  sue-  sysfcem- 
ceeded  in  excluding  the  royal  judges  from  their  fiefs, 
so  that  the  direct  jurisdiction  of  the  crown  became 
confined  to  the  comparatively  small  part  of  the  country 
which  was  included  in  the  royal  domain.  Gradually, 
indeed,  as  the  feudal  system  began  to  lose  its  strength, 
the  king's  jurisdiction  encroached  upon  that  of  the 
vassals,  —  a  process  which  was  carried  on  both  by 
insisting  on  the  right  of  appeal  to  the  royal  tribu- 
nals, and  by  reserving  for  the  exclusive  cognizance  of 
the  king's  courts  a  somewhat  indefinite  class  of  cases 

1  Gneist,  Englische  Verfassungsgeschichte^  pp.  298  et  seq.,  468  et  seq.; 
and  see  the  note  at  the  end  of  this  chapter. 


52  FRANCE. 

known  by  the  name  of  cas  royaux*  But  this  process 
aroused  serious  resistance  on  the  part  of  the  territorial 
lords,  and  it  was  not  until  the  sixteenth  century  that 
the  crown  judges  possessed  the  universal  authority  they 
had  obtained  in  England  more  than  three  hundred 
years  earlier.  So  strong,  in  fact,  did  the  local  jealousy 
of  the  Parliament  of  Paris  (the  king's  high  court  of 
justice)  remain,  that  after  the  great  fiefs  fell  into  the 
hands  of  the  crown,  they  were  not  placed  under  the 
jurisdiction  of  that  tribunal,  but  were  given  independ- 
ent parliaments  of  their  own.2  At  the  outbreak  of  the 
Revolution  there  were  thirteen  separate  parliaments,  so 
that  every  considerable  province  had  a  distinct  body 
of  magistrates.3  Under  these  circumstances,  the  courts 
could  not  create  a  uniform  national  justice  like  the 
English  common  law,  and  although  since  the  revolution 
such  a  uniform  system  has  been  provided  by  the  Code, 
this  does  not  strengthen  the  hands  of  the  judges,  but 
has  rather  the  opposite  tendency.  In  the  first  place,  it 
is  not  their  work,  and  hence  does  not  redound  to  their 
glory;  and  secondly,  by  weakening  the  force  of  prece- 
dent, it  diminishes  the  importance  of  judicial  decisions. 
This  review  of  the  history  of  the  courts  of  law  shows 

1  Aubert,  Le  Parlement  de  Paris  de  PUllippe  le  Bel  a  Charles  VII., 
eh.  i.  sec.  i.  ;  Hist,  du  Parl.  de  Paris,  1250-1515,  liv.  ii.  eh.  i.;  Du  Bois, 
Hist,  du  Droit  Criminel  de  la  France,  part  i.  ch.  i.;  Esmein,  Hist,  du  Droit 
Franfais,  part  i.  tit.  ii.  ch.  i.;  Hist,  de  la  Proc.  Crim.,  part  i.  tit.  i.  ch.  i. 
sec.  ii.;  ch.  ii.  sec.  i.;  Hallain,  Middle  Ages,  ch.  ii.  part  ii.  5. 

2  Du  Bois,  part  i.  ch.  ii.  §  2  ;  Bastard  d'Estang,  Les  Parlements  de  France, 
vol.  i.  pp.  36-38  ;  Esmein,  Hist,  du  Droit  Franpais,  tit.  ii.  ch.  i.  sec.  I.  §  2,  v. 

8  For  the  dates  of  the  creation  of  the  provincial  parliaments,  which 
run  from  1444  to  1775,  see  Bastard  d'Estang,  vol.  i.  p.  189,  note,  and 
Esmein,  ubi  supra. 


HER  CENTRALIZATION  ADMINISTRATIVE.  58 

clearly  why  they  have  not  attained  in  France  the  same 
power  and  authority  as  in  Anglo-Saxon  countries.1 

The  French  courts  of  law  were  weak  because  the 
royal  authority  did  not  come  into  direct  con- 

J        .  ,       ,  ,  ,  .  ,  ,  , .       The  admin- 

tact  with  the  people  at  the  time  when  public  istrative 

and  private  law  were  everywhere  blended, 
when  the  tone  of  thought  was  peculiarly  legal,  and 
when  political  power  was  chiefly  exercised  in  a  judicial 
or  semi- judicial  form.2  It  made  itself  felt  at  a  later 
date,  and  especially  as  the  restorer  of  order  after  the 
anarchy  caused  by  the  hundred  years'  war.  Its  presence 
brought  peace  and  prosperity,  and  naturally  enough 
the  organs  which  it  employed  acquired  a  high  degree 
of  vigor.  Now,  at  this  period,  administration,  in  the 
modern  sense,  was  becoming  important,  and  as  the 
royal  authority  came  to  be  exercised  by  commissioners 
or  intendants  who  had,  indeed,  certain  judicial  powers, 
but  whose  functions  were  chiefly  administrative,3  the 
administration  developed  an  influence  and  a  strength 
which  the  courts  have  never  attained.  The  administra- 


tive system  became  centralized,  and  grew  tobeJ;hejn^)sjL-- 
Important  factor  in  the  government.*     All  classes  of 
the  people  looked  to  it  for  protection ; 5  in  fact,  it  took, 

1  Since  the  Revolution,  the  courts  have,  of  course,  been  reorganized  on 
a  centralized  basis. 

2  On  the  relative  importance  attributed  to  law  in  the  Middle  Ages,  and 
in  later  times,  see  Stubbs's  chapters  on  the  Characteristic  Differences 
between  Mediaeval   and  Modern    History,    in  his  Lectures  on  Med.  and 
Mod.  Hist. 

8  Cheruel,  Die.  des  Inst.  de  la  France,  "  Intendants  des  Provinces ; M 
Esmein,  Hist,  du  Droit  Francais,  tit.  ii.  ch.  v.  §  2. 

4  Cf.  De  Tocqueville,  An.  Reg.  et  la  Rev.,  liv.  ii.  chs.  ii.  iii. 

6  De  Tocqueville  speaks  of  all  classes  as  looking  on  the  government  as 
a  special  providence.  Id.,  ch.  vi.  (7th  ed.  pp.  100-103) . 


54  FKANCE. 

to  a  great  extent,  the  place  which  the  judiciary  filled  in 
England,  and  in  those  countries  which  had  inherited 

O  7 

the  English  principles. 

This  difference  in  the  relative  authority  of  the  courts 

and  the  administration  was  intensified,  so  far  as 
doctrine  of  the  United  States  and  France  were  concerned., 
tion  of  by  the  political  philosophy  of  the  last  century » 

Montesquieu,  in  his  "  Spirit  of  the  Laws,"  pro- 
claimed the  importance  of  separating  the  executive, 
legislative,  and  judicial  powers,  and  the  maxim  was 
eagerly  accepted  on  both  sides  of  the  Atlantic,  though 
in  very  different  senses.  Our  ancestors,  anxious  to 
maintain  the  independence  of  the  courts  and  the  sacred- 
ness  of  private  rights,  took  the  principle  to  signify  the 
necessity  of  so  protecting  the  courts  from  the  control  or 
influence  of  the  other  branches  of  the  government  that 
they  might  be  free  to  administer  justice  without  regard 
to  the  official  position  of  the  litigants  or  the  nature  of 
the  questions  involved.  They  meant  to  preserve  the 
English  tradition  that  there  is  only  one  law  of  the  land 
to  which  every  one  is  subject,  from  the  humblest  citizen 
to  the  highest  officer.  The  French,  on  the  other  hand, 
had  acquired  no  great  passion  for  law,  or  for  the  rights 
of  the  individual,  and  did  not  admit  a  claim  on  the  part 
of  any  one  to  delay  or  overturn  the  public  interests  in 
order  to  get  his  own  grievances  redressed.  Moreover, 
they  had  seen  the  Parliament  of  Paris  interfere  with 
the  government  by  refusing  to  register  the  edicts  of  the 
King ;  for  although  this  tribunal  had  failed  to  acquire 
judicial  supremacy,  it  had  retained  a  good  deal  of  politi- 
cal power,  which  it  used  during  the  years  preceding  the 


THE  SEPARATION  OF  POWERS.  55 

Revolution  to  resist  innovations.1  Such  a  power  might 
not  be  disliked  as  a  means  of  opposing  an  unpopular 
court  party,  but  it  could  not  be  tolerated  for  a  moment 
when  the  reins  of  government  were  seized  by  men  who 
believed  themselves  commissioned  to  reform  the  world. 
The  French  statesmen,  therefore,  took  Montesquieu's 
doctrine  in  the  sense  that  the  administration  ought  to 
Be  t'refTfoT  act  t'or^the  public  weal  without  let  or  hiji- 
d ranee  fronTthe  courts  of  law:  The  .Declaration  of  the 
Kights  of  Man  proclaimed  in  1789  that  a  community  in 
which  the  separation  of  powers  was  not  established  had 
no  constitution ;  and  a  statute  of  the  next  year,  on  the 
organization  of  the  tribunals,  gave  effect  to  the  maxim 
as  it  was  understood  in  France  by  providing  that  the 
judges  should  not  interfere  in  any  way  with  the  work 
of  administrative  authorities,  or  proceed  against  the 
officers  of  the  government  on  account  of  their  official 
acts.2  The  American  and  French  applications  of  the 
doctrine  of  the  separation""  of  poweTs^are  both  per- 
fectly  logical,  but  are  based  on  different  conceptions  of 
the  nature  of  law.  The  Anglo-Saxon  draws  no  distinc- 
"tibn  between  public  and  private  law.  To  him  all  legal 
rights  and  duties  of  every  kind  form  part  of  one  univer- 
sal system  of  positive  law,  and  so  far  as  the  functions 
of  public  officials  are  not  regulated  by  that  law,  they  are 
purely  matters  of  discretion.  It  follows  that  every  legal 
question,  whether  it  involves  the  power  of  a  public 
officer  or  the  construction  of  a  private  contract,  comes 

1  Cf.  Edward  J.  Lowell,  The  Eve  of  the  French  Revolution,  p.  105. 

2  Aucoc,  Conferences,  part  i.  liv.  i.  ch.  i. ;  Bceuf ,  Resume,  part  iv 
sec.  n. 


56  FRANCE. 

before  the  ordinary  courts.1  In  France,  on  the  other 
hand,  private  law,  or  the  regulation  of  the  rights  and 
duties  of  individuals  among  themselves,  is  treated  as 
only  one  branch  of  jurisprudence;  while  public  law, 
which  deals  with  the  principles  of  government  and  the 
relations  of  individuals  to  the  state,  is  regarded  as 
something  of  an  entirely  different  kind.  Of  course 
every  civilized  government  must  strive  to  treat  all  its 
subjects  fairly,  and  hence,  in  the  course  of  administra- 
tion, questions  of  justice  must  arise ;  but  as  these  do 
not  concern  the  rights  of  a  man  against  his  neighbor, 
they  are  not  classed  in  France  with  private  law.  It  is 
felt  that,  unlike  questions  of  private  law,  they  ought 
not  to  be  decided  solely  by  the  application  of  abstract 
principles  of  justice  between  man  and  man,  but  must  be 
considered  from  the  broad  standpoint  of  public  policy. 
Now  the  domain  of  the  ordinary  French  courts  is  pri- 
vate law  alone,  and  it  is  quite  logical  to  regard  any 
attempt  on  their  part  to  judge  administrative  acts  and 
thus  pass  on  questions  of  public  policy,  as  an  attempt 
to  go  beyond  their  proper  sphere  of  action  and  invade 
the  province  of  the  executive.2 

The  principle  of  withdrawing  questions  of  public  law 
from  the  ordinary  courts  was  not  new.      It  existed  in 

1  This  principle,  like  all  others  in  Anglo-Saxon  countries,  is  not  carried 
out  with  absolute  consistency.    Thus  the  various  commissions  in  America 
on  railroads,  interstate  commerce,  etc.,  partake  of  the  nature  of  the 
French  administrative  tribunals. 

2  The  French,  like  the  Americans,  have  not  applied  their  principles 
quite  strictly,  for  Criminal  Law  ought  to  be  a  branch  of  Public  Law 
(Aucoc,  Introd.  §  1),  but  it  has  been  put  into  the  charge  of  the  ordinary 
courts. 


THE  ADMINISTRATIVE  COURTS.  67 

practice  under  the  old  regime,1  but  was  extended  and 
systematized  after  the  Revolution.  The  protection  of 
officials  from  suit  or  prosecution  was  formally  incorpo- 
rated into  the  Constitution  of  the  year  VIII.  (1799), 
and  remained  in  force  until  after  the  fall  of  Napo- 
leon III.,  when  it  was  repealed  by  a  decree  of  the 
Government  of  the  National  Defense.2  This  decree 
was  intended  to  remove  all  hindrances  in  the  way 
of  bringing  government  officials  before  the  ordinary 
courts,  but  it  had  very  little  effect,  because  the  Tri- 
bunal of  Conflicts  held  that  it  applied  only  to  the 
personal  protection  of  officials,  and  did  not  affect  the 
principle  of  the  separation  of  powers,  which,  as  un- 
derstood in  France,  forbids  the  ordinary  judges  to 
pass  upon  the  legality  of  official  acts.3  Ques- 
tions of  this  kind,  therefore,  are  still  reserved 
exclusively  for  the  administrative  courts, — 
tribunals  created  especially  for  this  purpose,  and  com- 
posed of  officials  in  the  service  of  the  government. 
Criminal  cases  are,  indeed,  an  exception  to  the  rule,4  but 
this  is  of  no  great  practical  importance,  because  as  force 
is  pretty  sure  to  be  on  the  side  of  the  police,  it  is  no 
real  protection  to  the  individual  to  know  that  he  can- 

1  See  Laferriere,  Traite,  liv.  i.  ;  De  Tocqueville,  An.  Reg.  et  la  Rev., 
book  ii.  ch.  iv. ;  Varagnac,  "  Le  Conseil  d'Etat,"  Revue  des  Deux  Mondes, 
Aug.  15,  1892. 

2  Decree  of  Sept.  19,  1870. 

3  Arret,  30  Juillet,  1873,  "Affaire  Pele-tier,"  Dalloz,  Jur.  Gen.,  1874, 
part  iiL  p.  5  ;  Leferriere,  Traite,  liv.  iii.  ch.  vii. ;  Aucoc,  Con/*.,  liv.  v.  ch. 
ii. ;  Goodnow,  Comp.  Adm.  Law,  vol.  ii.  pp.  172-76. 

4  Laferriere,  Traite,  liv.  iii.  ch.  vi.     But  even  this  exception  is  not 
absolute.    See,  also,  a  discussion  of  the  subject  in  Dalloz,  1881,  part  iii 
p.  17,  note. 


58  FRANCE. 

not  be  condemned  for  resistance;  and  on  the  other  hand 
the  officials  concerned  run  no  risk  of  punishment  for 
illegal  acts  committed  in  obedience  to  orders,  because 
the  government  can  easily  manage  to  prevent  their 
being  brought  to  trial,  and  can  pardon  them  if  con- 
victed. In  France,  therefore,  there  is  one  law  for  the 
citizen  and  another  for  the  public  official,  and  thus 
the  executive  is  really  independent  of  the  judiciary, 
for  the  government  has  always  a  free  hand,  and  can 
violate  the  law  if  it  wants  to  do  so  without  having  any- 
thing to  fear  from  the  ordinary  courts.  Nor  is  the 
danger  of  interference  on  the  part  of  the  administrative 
tribunals  as  great  as  it  would  be  in  the  case  of  the 
ordinary  judges,  because  the  former  can  be  controlled 
absolutely  in  case  of  necessity ;  and,  in  fact,  they  are 
so  much  a  part  of  the  administration  itself  that  they 
fall  into  the  province  of  the  Interior  and  not  that  of 
Justice.1  The  independence  of  the  ordinary  judges  is 
secured  by  a  provision  which  prevents  their  removal  or 
transfer  to  another  court,  without  the  approval  of  the 
Court  of  Cassation,  the  final  court  of  error.  But  the 

1  It  would  be  absurd  to  suppose  that  the  government  always  extorts 
a  favorable  judgment.  This  was  clearly  shown  in  1895,  in  a  once 
famous  case,  which  illustrates  at  the  same  time  the  degree  of  respect 
entertained  for  the  decisions  of  the  administrative  courts.  The  Minister 
of  the  Interior  and  the  railroads  disagreed  about  the  interpretation  of  a 
statute  relating  to  the  state  guarantee  of  interest  on  the  securities  of  the 
roads.  The  matter  was  brought  before  the  Council  of  State,  which 
decided  in  favor  of  the  railroad.  Thereupon  the  Minister  of  the  Interior 
resigned,  but  the  rest  of  the  cabinet  felt  bound  to  abide  by  the  decision. 
A  discussion  was,  however,  raised  in  the  Chamber  of  Deputies,  which  in 
effect  censured  the  ministers  for  submitting  the  matter  to  the  Council  of 
State,  and  thereby  caused  the  cabinet  to  resign. 


THE  ADMINISTRATIVE  COURTS.  59 

judges  of  the  administrative  courts  enjoy  no  such  pro- 
tection, and  can  be  removed  by  the  President  at  any 
time.1  The  result  is  that,  although  a  great  mass  of 
administrative  law  has  slowly  grown  up  from  the  deci- 
sions of  these  courts,2  and  personal  liberty  is  much 
more  respected  than  under  the  Empire,  yet  the  courts 
themselves  cannot  be  considered  entirely  judicial  bodies, 
and  are  far  from  providing  the  rights  of  the  citizen  with 
a  complete  guarantee,  at  least  where  political  questions 
are  involved.3 

1  Aucoc,  Con/.,  vol.  i.  pp.  156-57;  Bceuf,  Resume,  pp.  39-40.  The  mem- 
bers of  the  Council  of  State  who  are  qualified  to  sit  as  administrative 
judges  are  said  to  be  always  selected  from  the  political  friends  of  the 
government  (Dupriez,  Les  Ministres,  vol.  ii.  pp.  482-83). 

2  Unlike  the  civil  law,  the  administrative  law  has  never  been  codified, 
and  indeed  it  could  not  be  without  destroying  the  element  of  discretion 
which  is  the  reason  for  its  existence.     So  far  as  it  is  not  contained  in 
statutes  and  ordinances,  it  has  developed,  like  the  English  Common  Law, 
by  decision  and  precedent,  and  hence  the  sources  for  studying  it  are  the 
reported  cases  and  the  writings  of  jurists  such  as  those  heretofore  cited. 

8  Lebon,  France  as  It  Is,  pp.  101-2;  Goodnow  (Comp.  Administrative 
Law,  vol.  ii.  pp.  220-21,  231)  remarks  that  the  administrative  courts  have 
shown  themselves  more  favorable  to  private  rights  than  the  ordinary 
courts,  and  in  some  ways  that  is  certainly  true.  In  English-speaking 
countries  a  public  official  can  be  prosecuted  criminally  or  sued  for  dam- 
ages in  the  ordinary  courts  for  any  acts  done  without  legal  authority, 
whether  his  action  was  in  the  public  interest  or  not.  But  he  is  not,  as  a 
rule,  liable  for  acts  authorized  by  law  although  his  actual  motives  were 
bad  or  his  discretionary  powers  misused.  Nor  is  he  usually  liable  for 
negligence  in  the  performance  of  his  duties.  The  state,  on  the  other 
hand,  cannot  in  theory  be  sued  at  all.  In  practice  some  means  of  main- 
taining claims  against  the  state  is  almost  always  provided;  but  only  for 
breaches  of  contract  or  to  recover  property,  not  for  torts  committed  by 
officials. 

In  France  acts  of  officials  are  classified  in  quite  another  way  with  very 
different  results.  First,  there  are  personal  acts,  which  involve  grave  per- 


60  FRANCE. 

It  is  evident  that  with  two  sets  of  courts,  neither  of 
The  Court  which  is  superior  to  the  other,  disputes  about 
of  Conflicts,  jurisdiction  must  constantly  arise.  Such  is  in 

sonal  misconduct  or  gross  negligence  on  the  part  of  the  official,  whether 
beyond  or  within  his  legal  authority.  For  these,  and  these  alone,  he  is 
liable  in  damages  in  the  ordinary  courts.  Whatever  he  does  in  good  faith 
for  the  public  interest,  whether  within  or  beyond  his  legal  authority,  is  an 
act  of  administration  for  which  a  remedy,  if  any,  can  be  sought  only 
against  the  state,  and  as  a  rule  only  in  the  administrative  courts.  Acts 
of  this  kind  fall  into  three  classes,  called,  actes  de  gestion,  actes  d'authorite 
and  actes  de  gouvernement.  Broadly  speaking,  actes  de  gestion  are  acts 
done  in  the  course  of  the  business  administration  of  the  public  ser- 
vices, and  the  administrative  courts  tend  to  award  compensation  against 
the  state  for  acts  of  this  nature,  not  only  when  done  wholly  without 
legal  authority,  but  also  when  there  has  been  an  abuse  of  that  author- 
ity for  improper  purposes,  or  even  negligence,  as,  for  example,  where 
a  merchantman  has  been  damaged  by  collision  with  a  warship.  (See 
a  discussion  of  this  whole  subject  in  Hauriou  La  Gestion  Administra- 
tive). Actes  d'authorite  are  done  in  the  exercise  of  the  right  of  the  state 
to  issue  commands  to  its  citizens;  and  if  such  commands,  orders  or  regu- 
lations are  issued  without  legal  authority,  or  involve  an  abuse  of  power, 
they  can  be  annulled  by  a  special  procedure  in  the  Council  of  State,  which 
may  incidentally  award  compensation.  Finally  actes  de  gouvernement,  that 
is  acts  done  for  reasons  of  state  with  a  view  to  the  public  safety,  whether 
within  the  legal  power  of  the  government  or  not,  lie  beyond  the  juris- 
diction both  of  the  ordinary  and  the  administrative  courts;  but  there  is  a 
distinct  tendency  to  restrict  this  principle  to  an  ever-narrowing  field. 

It  is  obvious  that  while  the  French  system  does  not  hold  the  official  to 
a  rigid  conformity  with  law,  it  often  gives  compensation  from  the  public 
treasury  for  tortious  acts  of  officials  when  in  England  or  America  there 
would  be  no  redress,  or  only  an  action  against  an  official  who  might  be 
unable  to  pay  the  damages. 

It  is  somewhat  curious  in  this  connection  to  observe  that  French 
writers  often  assert  the  inability  of  an  ordinary  court  to  protect  the  pub- 
lic against  illegal  ordinances,  because  it  can  only  decide  the  case  at  bar, 
whereas  an  administrative  court  has  power  to  annul  the  ordinance  alto- 
gether; a  remark  which  shows  an  entire  failure  to  comprehend  the  force 
of  precedent  in  a  judicial  system  like  that  of  England.  (See,  for  example, 


THE  ADMINISTRATIVE  COURTS.  61 

fact  the  case,  and  a  special  tribunal  has  been  appointed 
to  determine  these  disputes,  or  conflicts  as  they  are 
called.1  It  is  composed  of  the  Minister  of  Justice,  of 
three  members  of  the  highest  court  of  law,  the  Court  of 
Cassation,  of  three  members  of  the  highest  administra- 
tive court,  the  Council  of  State  (each  of  these  sets  being 
selected  by  their  own  court),  and  of  two  other  persons 
elected  by  the  foregoing  seven.  All  the  members  are 
chosen  for  three  years,  except  the  Minister  of  Justice. 
This  officer  has  the  right  to  preside,  and  thus  his  pres- 
ence gives  to  the  administration  a  majority  in  the  tri- 
bunal. A  striking  example  of  the  working  of  the  sys- 
tem was  presented  in  1880,  when  the  government  issued 
decrees  for  the  suppression  of  all  monastic  orders  not 
authorized  by  law.  There  seems  to  have  been  grave 
doubt  about  the  legality  of  the  decrees,  and  the  victims 
brought  suits  in  the  ordinary  courts  in  several  parts  of 
France.  Most  of  these  courts  held  that  they  were 
authorized  to  entertain  the  suits,  and  in  some  cases  they 
went  so  far  as  to  order  the  persons  who  had  been  ex- 
pelled from  their  establishments  to  be  restored  to  pos- 
session pending  the  trial ; 2  but  the  government  raised 
the  question  of  jurisdiction,  and  the  Tribunal  of  Con- 

Varagnac,  "  Le  Conseil  d'Etat,"  Revue  des  Deux  Mondes,  Sept.  15,  1892, 
pp.  290-91.) 

An  admirable  comparison  of  the  English  and  French  systems  may  be 
found  in  Professor  Dicey's  Law  of  the  Constitution,  and  especially  in 
chapter  xii. 

1  Aucoc,  Con/.,  vol.  i.  §  406;  Bceuf,  Resume,  15th  ed.  pp.  542-43. 

2  Some  of  the  decisions  to  this  effect  may  be  found  in  Dalloz,  Jurispru- 
dence Generate,  1880,  part  iii.  pp.  57-62,  and  80.     In  the  note  to  page  57 
there  is  a  list  of  some  of  the  other  similar  decisions  and  a  discussion  of 
the  law. 


62  FRANCE. 

flicts  decided  that  the  ordinary  courts  were  not  compe« 
tent  to  deal  with  the  matter.1  It  is  a  significant  fact, 
which  seems  to  show  a  lack  of  confidence  in  the  impar- 
tiality of  the  administrative  courts,  that  the  persons 
injured  did  not  bring  the  question  of  the  legality  of 
the  decrees  before  the  Council  of  State.2 

When  an  ordinary  court  has  assumed  jurisdiction  of 
a  case,  the  question  of  competence  can  be  raised  only 
by  the  prefect,  and  not  by  a  party,  for  the  principle 
that  the  ordinary  courts  cannot  determine  the  legality 
of  official  acts  is  intended  solely  as  a  protection  to  the 
administration  .3 

It  is  not  quite  accurate  to  say  that  the  ordinary 
jurisdiction  courts  can  consider  the  validity  of  no  official 
migrative  act?  an^?  indeed,  the  line  between  the  juris- 
diction of  the  ordinary  and  the  administrative 
courts  does  not  follow  any  strictly  logical  principle.4 
Questions  of  indirect  taxes,  for  example,  and  those 
relating  to  the  lesser  highways  (petite  voirie),  come 
before  the  ordinary  courts,  while  those  arising  under 
the  direct  taxes,  or  relating  to  the  greater  highways 
(grande  voirie],  come  before  the  administrative  tribu- 
nals. The  competence  of  the  various  administrative 

1  Arrets  de  Nov.  4,  5,  13,  17,  and  20  ;  Dalloz,  1880,  part  iii.  pp.  121- 
32.    These  cases  are  reported  with  unusual  fullness. 

2  At  least  I  can  find  no  decision  on  the  subject  by  the  Council  of  State 
reported  in  Dalloz.     For  criticisms  on  the  conduct  of  the   government, 
see  Jules  Simon,  Dieu,  Patrie,  Liberte,  ch.  vi.  ;  and  Channes,  Nos  Fautes, 
letters  of  July  12  and  Oct.  27,  1880. 

8  Aucoc,  Con/,  vol.  i.  §  404;  Bceuf,  Resume,  15th  ed.  p.  547. 
4  On  this  subject,  see  Laferriere's  great  work,  Traite  de  la  Jurisdiction 
Administrative. 


THE  ADMINISTRATIVE  COURTS.  63 

courts  is  no  less  complicated.  The  prefect  and  the 
mayor  have  each  a  very  limited  jurisdiction.  That  of 
the  pref  ectorial  councils,  on  the  other  hand,  is  very  con- 
siderable, although  as  a  matter  of  fact  these  councils 
are  occupied  almost  altogether  with  questions  of  taxes, 
and  in  these,  as  a  rule,  they  follow  the  advice  of  the 
assessors.1  But  by  far  the  most  important  administra- 
tive court  is  the  Council  of  State,  which  has  a  special 
section  or  committee  to  attend  to  the  contentieux,  as 
this  class  of  litigation  is  called.  The  Council  not  only 
hears  appeals  from  the  lower  administrative  tribunals, 
but  has  also  original  jurisdiction  in  many  important 
cases,  and  in  fact  recent  practice  is  tending  to  establish 
the  principle  that  the  Council  of  State  is  the  judge  of 
all  administrative  matters  in  the  absence  of  special  pro- 
visions of  law.  The  number  of  cases  brought  before 
it  is  very  large,  and  has  increased  so  rapidly  that  the 
section  for  the  contentieux  is  badly  in  arrears,  and  it 
has  been  proposed  to  create  a  second  section  to  relieve 
the  pressure.2 

Such  is  the  legal  position  of  the  administration  in 
ordinary  times,  but  in  case  of  war  or  insurrec-  The  state  of 
tion  it  can  be  given  far  greater  powers,  by  a  siege' 
proclamation  of  the  state  of  siege.  This  can  be  made 
by  statute,  or  if  Parliament  is  not  in  session,  it  can  be 
made  by  the  President ;  but  in  that  case,  in  order  to 
meet  the  danger  of  a  coup  d'etat,  which  is  ever  present 

1  Vicomte  d'Avenel,  "  La  Re*f  orme  Administrative  —  La  Justice,"  Revue 
des  Deux  Mondes,  June  1,  1889,  p.  596. 

2  For  the  number  of  cases  decided  by  the  administrative  courts,  see 
the  tables  (through  1886)  in  Laferri«re,  liv.  i.  ch.  v. 


64  FRANCE. 

to  the  eyes  of  Frenchmen,  it  is  provided  that  the  Cham- 
bers shall  meet  as  of  right  in  two  days.1  Within  the 
district  covered  by  the  state  of  siege,  the  military  courts 
can  be  given  criminal  jurisdiction,  and  can  punish  any 
offenses  against  the  safety  of  the  Republic  or  the  general 
peace.  They  can  search  houses  by  day  or  night,  expel 
from  the  district  any  non-residents,  seize  ah1  arms,  and 
forbid  any  publications  or  meetings  which  are  liable  to 
disturb  the  public  order.2 

I  have  dwelt  at  some  length  on  what,  from  an 
Effect  of  the  Anglo-Saxon  point  of  view,  may  well  be  called 
tFemnontSheS"  the  legislative  and  judicial  powers  of  the 
t^e^-cu-  executive  in  France,  because  these  things  are 
entirely  foreign  to  our  own  political  ideas  and 
experience,  and  because  they  exist  in  some  form  in 
almost  every  country  on  the  continent  of  Europe. 

When  we  consider  the  paternal  character  of  the 
government,  the  centralization  of  the  state,  and  the 
large  share  of  authority  vested  in  the  executive  depart- 
ment, we  cannot  fail  to  see  that  the  ministers  in  whose 
hands  this  vast  power  is  lodged  must  be  either  very 
strong  or  very  weak.  If  they  are  able  to  wield  it  as 
they  please,  and  are  really  free  to  carry  out  their  own 
policy,  they  must  be  far  stronger  than  any  officer  or 
body  in  Great  Britain,  and  immeasurably  stronger  than 
any  in  our  federal  republic.  But,  on  the  other  hand, 
the  very  immensity  and  pervasiveness  of  their  power, 
the  fact  that  it  touches  closely  every  interest  in  the 
country,  renders  them  liable  to  pressure  from  all  sides. 

1  Law  of  April  3,  1878,  Poudra  et  Pierre,  §  79. 
8  Poudra  et  Pierre,  §  76,  gives  the  text  of  the  law. 


EFFECT  OF  THE  FRENCH  SYSTEM.  65 

It  becomes  important  for  every  one  to  influence  their 
action,  provided  he  can  get  a  standpoint  from  which 
to  bring  a  pressure  to  bear.  This  standpoint  is  fur- 
nished by  the  Chamber  of  Deputies,  for  the  existence 
of  the  ministry  depends  on  the  votes  of  that  body. 
The  greater,  therefore,  the  power  of  the  minister,  and 
the  more  numerous  the  favors  he  is  able  to  bestow,  the 
fiercer  will  be  the  struggle  for  them,  and  the  less  will 
he  be  free  to  pursue  his  own  policy,  untrammeled  by 
deputies,  whose  votes  he  must  win  if  he  would  remain 
in  office.  A  Frenchman,  who  is  eminent  as  a  student 
of  political  philosophy,  and  has  at  the  same  time  great 
practical  experience  in  politics,  once  remarked  to  the 
author,  "  We  have  the  organization  of  an  empire  with 
the  forms  of  a  republic."  l  The  French  administrative 
system  is,  indeed,  designed  for  an  empire,  and  would 
work  admirably  in  the  hands  of  a  wise  and  benevolent 
autocrat  who  had  no  motive  but  the  common  weal ;  but 
when  arbitrary  power  falls  under  the  control  of  popular 
leaders,  it  can  hardly  fail  to  be  used  for  personal  and 
party  ends ;  for,  as  a  keen  observer  has  truly  said,  the 
defect  of  democracy  lies  in  the  fact  that  it  is  nobody's 
business  to  look  after  the  interests  of  the  public.2 

1  Gneist  expresses  the  same  idea  :  "  Es  entsteht  der  unvermittelte  Gegen- 
satz  enter  republikanisch  gedachten  Verfassung  mit  einer  absolutistisch  orga- 
nisirten  Verwaltung"     (Die  Preussische  Kreisordnung,  p.  7.) 

2  The  late  Professor  Gneist,  perhaps  the  most  profound  student  of  the 
comparative  history  of  England  and  the  continent,  from  the  point  of 
view  of  the  working  of  parliamentary  government,  demonstrated  that  the 
success  of  the  system  in  England  has  been  due  to  certain  underlying 
institutions  which  have  made  that  country  a  commonwealth  based  upon 
law  (Rechtsslaat).     His  chief  works  on  the  subject  are  his  Englische 
Verwaltungsrecht ;  Self-government,  etc.,  in  England;  Der  Rechtsstaat,  and 

VOL.    I. 


66  FRANCE. 

Verwaltung,  Justiz,  Rechtsweg.  In  the  opening  words  of  the  preface  to 
the  last  of  these,  the  keynote  of  the  whole  theory  is  struck  when  he  says, 
"  Die  parlamentarische  Regierung  Englands  ist  eine  Regierung  nach  Gesetzen 
und  durch  Gesetze." 

His  views  may  be  briefly  summarized  as  follows  :  In  England  alone, 
among  the  countries  of  Europe,  the  royal  power  became  consolidated 
early,  for  the  Norman  kings  broke  down  the  resistance  of  the  great 
vassals  and  made  their  authority  effective  over  the  whole  realm,  drawing 
military,  judicial,  and  police  matters  into  their  own  hands.  By  this 
process,  the  antagonism  and  jealousy  of  the  different  classes  was  crushed  ; 
while  the  land-owning  nobility  found  their  only  chance  of  political  activity 
in  exerting  a  restraint  upon  the  crown  by  means  of  judicial  action  and 
statutes.  Their  first  great  achievement  was  Magna  Charta,  with  which  the 
parliamentary  era  begins.  The  struggle  was  continued  in  the  Barons' 
war,  and  resulted  in  the  evolution  of  the  House  of  Commons. 

From  time  to  time  Parliament  enacted  statutes  which  supplemented 
the  customary  law,  and  furnished  a  solid  basis  for  the  decisions  of  the 
courts.  The  existence  of  permanent  statutes,  as  distinguished  from  royal 
edicts  in  their  nature  changeable,  is  one  of  the  chief  foundations  of  the 
reign  of  law  in  England,  for  the  statutes  in  ever  increasing  quantity  regu- 
lated the  administration  rigorously  and  uniformly  throughout  the  land. 

Another  factor  that  contributed  to  the  same  result  was  the  method  in 
which  the  statutes  were  executed,  and  this  in  turn  may  be  traced  to  the 
early  extension  of  the  royal  power.  The  administrative  laws  were 
carried  out  by  means  of  a  large  number  of  officers,  of  whom  the  most 
important  were  the  justices  of  the  peace.  These  were  appointed  by  the 
king,  and  hence  acted  in  behalf  of  the  state  instead  of  local  or  class 
interests  ;  but,  on  the  other  hand,  they  were  in  fact  the  greater  land- 
owners of  the  county,  not  professional  officials  bound  to  do  the  bidding  of 
the  court.  They  conducted  the  local  administration  according  to  judicial 
forms,  subject  on  purely  legal  questions  to  the  control  of  the  King's 
Bench  by  means  of  writs  of  Certiorari,  Mandamus,  etc.,  the  effect  being  to 
prevent  arbitrary  abuse  of  power,  and  to  insure  legality  in  the  execution 
of  the  law.  In  short,  as  Gneist  expresses  it,  the  English  developed  an 
elaborate  and  effective  system  of  administrative  justice. 

The  method  of  administration  also  produced  self-government,  by  which 
Gneist  means  not  the  control  of  local  matters  by  bodies  elected  to  repre- 
sent local  interests,  but  an  organization  of  the  whole  community  for  the 
service  of  the  state,  so  arranged  that  the  classes  most  capable  by  their 
wealth  and  position  for  government  bore  the  burdens  and  administered 
the  affairs  of  their  neighborhood.  The  result  was  brought  about  in 


NOTE  OF  THE  VIEWS  OF  GNEIST.  67 

England  chiefly  by  means  of  the  office  of  justice  of  the  peace,  which 
gradually  became  both  an  honor  and  a  duty  attached  to  the  ownership  of 
land.  Thus  the  gentry  carried  on  the  local  government ;  but  this  was 
no  mere  privilege  which  they  enjoyed  for  their  own  benefit,  because  they 
also  paid  the  taxes  and  ruled,  not  for  the  profit  of  their  own  class,  but  as 
officers  of  the  state  for  the  common  good  and  in  strict  accordance  with 
fixed  laws.  Hence,  instead  of  the  hostility  of  classes  that  existed  all  over 
the  continent,  there  developed  harmonious  local  communities  with  true 
public  opinions  on  political  questions.  Moreover,  the  habit  of  sitting  as 
justices  gave  to  the  gentry  a  sense  of  public  duty  and  a  love  for  law. 
Now  the  House  of  Commons  was  virtually  composed  of  the  representa- 
tives of  the  gentry,  who  carried  into  it  their  sentiments.  The  members 
of  Parliament,  therefore,  understood  law,  and  had  a  deep  sense  of  its 
importance,  while  their  training  caused  them  to  act  for  the  good  of  the 
whole  state  rather  than  the  benefit  of  their  own  class.  This  rendered 
possible  the  formation  of  real  national  parties,  based  on  differences  of 
opinion,  not  on  class  interests  ;  parties  whose  action  in  Parliament  was 
restricted  by  a  respect  for  law. 

Gneist  points  out  how  different  has  been  the  history  of  France. 
Feudalism  there  was  at  first  too  strong  for  the  royal  power  to  overcome, 
and  hence  the  community,  instead  of  being  consolidated,  split  into  hostile 
classes.  The  king  found  himself  at  the  head  of  a  state  whose  organiza- 
tion was  so  loose  and  inefficient  as  to  be  incapable  of  natural  develop- 
ment. As  soon  as  he  was  able,  he  began  to  create  in  the  royal  domains 
better  military,  financial,  police,  and  judicial  systems.  The  old  institutions 
having  gained  no  strength  in  the  mean  while  were  unable  to  stand  against 
the  new  and  more  effective  ones,  which  gradually  spread  over  the  whole 
of  France.  The  new  ones,  however,  were  not  combined  with  the  old,  but 
substituted  for  them  ;  and  thus  the  power  both  of  the  vassals  and  of  the 
estates  was  crushed  by  the  royal  supremacy.  In  fact,  the  political  and 
social  organization  of  the  country  became  entirely  unlike.  Socially, 
the  nation  was  still  divided  into  the  classes  whose  selfish  antagonism  had 
made  possible  the  triumph  of  the  crown.  Politically,  absolute  power 
had  become  vested  in  the  king,  who  ruled  by  means  of  a  paid  corps  of 
officials  without  ties  with  the  local  communities,  unrestrained  by  perma- 
nent statutes,  and  dependent  solely  on  his  pleasure.  The  French  Revolu- 
tion did  not  essentially  change  this  state  of  things.  It  did  not  create  a 
new  organic  political  structure  of  the  community,  but  merely  transferred 
the  royal  power  to  the  people,  or  rather  to  those  particular  interests 
among  the  people  that  were  able  to  acquire  ascendency  for  the  moment, 
and  these  were  no  more  inclined  to  place  restraints  on  their  own  omiiipo- 


68  FRANCE. 

tence  than  the  king  had  been  before.  While,  therefore,  private  law  was 
just  and  strong,  public  law  was  weak  and  unstable  ;  and  as  public  law  is 
the  foundation  of  political  society,  Gneist  regards  France  as  the  very 
negation  of  a  commonwealth  based  upon  law. 

German  history  followed  very  much  the  same  course  during  the 
Middle  Ages,  but  at  their  close  the  central  power  was  not  strong  enough 
to  enforce  obedience  and  consolidate  the  empire.  Hence  the  supremacy 
of  the  crown  developed  at  a  still  later  time,  after  the  centrifugal  forces 
had  grown  so  powerful  that  the  principalities  had  become  well-nigh 
independent.  Then  the  princes  overcame  within  their  territories  the 
resistance  of  the  estates  as  the  king  had  done  in  France.  In  Germany, 
however,  and  especially  in  Prussia,  the  bureaucracy  was  so  ordered  as  to 
furnish  a  better  protection  to  individual  rights  and  a  firmer  maintenance 
of  law.  But  this  broke  down  with  the  spread  of  French  ideas  after  1848, 
when  the  antagonistic  interests  in  the  state,  taking  advantage  of  the 
parliamentary  system,  abused  the  administrative  power  and  introduced 
a  veritable  party  tyranny. 

Gneist  considered  the  subsidiary  framework  of  the  English  institutions, 
and  especially  tbe  justices  of  the  peace,  as  the  foundation  of  the  legal 
character  of  the  government,  and  hence  of  the  success  of  the  parlia- 
mentary system.  But  he  did  not  realize  that  the  keystone  of  the  whole 
structure  is  the  ultimate  decision  by  the  courts  at  Westminster  of  all 
questions  of  law  that  arise  in  the  course  of  the  administration.  He  did 
mot  see  that  the  legal  spirit  pervading  the  system  is  the  result  of  giving 
to  public  law  the  sacredness  and  inflexibility  that  pertains  to  private  law, 
and  that  this  end  is  reached  by  fusing  the  two  together,  and  confiding 
them  both  in  the  last  resort  to  the  same  courts.  On  the  contrary,  he 
believed  that  public  and  private  law  ought  to  be  kept  distinct,  and  he 
approved  of  the  practice  of  placing  the  former  in  the  hands  of  special 
administrative  tribunals.  The  germs  of  such  a  system  appeared  for  a 
moment  in  England  when  the  Star  Chamber  began  to  act  as  a  supreme 
administrative  court  ;  but  one  cannot  help  feeling  that  if  this  procedure 
had  become  permanent,  public  law  would  have  been  much  less  rigidly 
interpreted  than  it  was  by  the  King's  Bench,  that  the  administration 
would  have  become  more  discretionary,  and  that  the  strict,  rigorous, 
legal  spirit  of  the  system  would  have  been  lost. 

It  may  be  added  that  Gneist  considered  the  English  government  at 
its  highest  perfection  under  George  III.  In  his  opinion,  the  reform  bill 
of  1832,  the  extension  of  the  franchise  in  1867,  and  still  more  the  recent 
changes  in  local  government,  have  been  a  departure  from  historic  prin- 
ciples, and  have  tended  by  disorganizing  the  state  to  bring  about  a  strife 
of  parties  and  reduce  England  to  the  condition  of  other  nations. 


CHAPTER  H. 
FRANCE:   PARTIES. 

FOR  more  than  a  hundred  years  it  has  been  the  habit 
to  talk  of  government  by  the  people,  and  the 

i  n         l  J   j.      J  '^ie  influ" 

expression  is,  perhaps,  more  rreely  used  to-day  ence  of  par- 

n      •  ti68  *n  P<>PU- 

than  ever  before,  yet  a  superficial  glance  at  largovem- 
the  history  of  democracy  ought  to  be  enough 
to  convince  us  that  in  a  great  nation  the  people  as  a 
whole  do  not  and  cannot  really  govern.  The  fact  is 
that  we  are  ruled  by  parties,  whose  action  is  more  or 
less  modified,  but  never  completely  directed,  by  public 
opinion.  Rousseau,  indeed,  shadowed  forth  a  great 
truth,  when  he  declared  that  no  community  could  be 
capable  of  a  general  will  —  or  as  we  should  express  it, 
of  a  true  public  opinion  —  where  parties  or  sects  pre- 
vailed;1 and  our  own  experience  of  popular  government 
will  quite  justify  us  in  saying  that  public  opinion  is 
always  more  or  less  warped  by  the  existence  of  party 
ties.  A  study  of  the  nature  and  development  of  parties 
is,  therefore,  the  most  important  one  that  can  occupy 
the  student  of  political  philosophy  to-day.  AS  a  rule 
Among  Anglo-Saxon  peoples,  who  have  had 
a  far  longer  experience  in  self-government 
than  most  other  races,  there  are  usually  two  tries,nbutun 
great  parties  which  dispute  for  mastery  in  the  where.  e 

1  Contrat  Social,  liv.  ii.  ch.  iii. 


70  FRANCE. 

state.  But  in  the  countries  on  the  continent  of  Europe 
this  is  not  usually  true.  We  there  find  a  number  of 
parties  or  groups  which  are  independent  of  each  other 
to  a  greater  or  less  extent,  and  form  coalitions,  some- 
times of  a  most  unnatural  kind,  to  support  or  oppose 
the  government  of  the  hour.  Now  the  existence  of 
several  distinct  political  groups  has  a  decisive  influence 
on  the  working  of  the  parliamentary  system.  Let  us 
consider  this  question  a  moment. 

When  a  country  with  a  parliamentary  form  of  gov- 
ernment is  divided  into  two  hostile  parties, 
parliament-    the  ministers  who  lead  the  majority  of   the 
there  are       popular  chamber  must  of  course  belong  all  to 

normally  .  _ 

only  two       one  of  those  parties,  or  all  to  the  other,  and 

parties.  . 

they  are  forced  by  circumstances  to  work  m 
harmony.  But  even  when  party  strife  is  less  bitter, 
and  parties  have  begun  to  break  up,  experience  has 
proved  that  the  best  policy  for  the  ministers  is  to  sup- 
port each  other  and  stand  or  fall  together.  Lord  Mel- 
bourne is  reported  to  have  exclaimed  at  a  cabinet  meet- 
ing, after  a  discussion  on  the  question  of  changing  the 
duty  on  corn,  "  Now  is  it  to  lower  the  price  of  corn,  or 
is  n't  it  ?  It  is  not  much  matter  which  we  say,  but 
mind,  we  must  all  say  the  same." l  The  statesmanship 
implied  by  this  remark  may  not  have  been  of  the  high- 
est kind,  but  the  politics  were  sound,  and  showed  a 
knowledge  of  the  great  secret  of  success.  It  is,  indeed, 
an  axiom  in  politics  that,  except  under  very  peculiar 
circumstances,  coalition  ministries  are  short-lived  com- 
pared with  homogeneous  ones,  whose  members  are  in 

1  Bagehot,  English  Constitution,  p.  16,  note. 


PARTIES  IN  THE  PARLIAMENTARY  SYSTEM.        71 

cordial  sympathy  with  each  other.  Now  so  long  as  the 
ministers  cling  together,  every  member  of  the  House 
must  consider  the  cabinet  and  its  policy  as  a  whole,  and 
make  up  his  mind  whether  he  will  support  it,  or  help 
to  turn  it  out  and  put  in  an  entirely  different  set  of 
ministers  with  another  policy.  He  cannot  support  the 
cabinet  on  certain  questions  and  oppose  it  on  others. 
He  must  sacrifice  details  to  the  general  question.  The 
result  is  that  the  members  either  group  themselves 
about  the  ministers,  and  vote  with  them  through  thick 
and  thin,  or  else  they  attach  themselves  to  an  opposi- 
tion party,  whose  object  is  to  turn  out  the  cabinet,  and 
then  take  office  itself  and  carry  on  a  different  policy. 
The  normal  condition  of  the  parliamentary  system, 
therefore,  among  a  people  sufficiently  free  from  preju- 
dices to  group  themselves  naturally,  and  possessing 
enough  experience  to  know  that  the  practical  and 
attainable,  and  not  the  ideal,  is  the  true  aim  in  politics, 
is  a  division  into  two  parties,  each  of  which  is  ready  to 
take  office  whenever  the  other  loses  its  majority.  This 
has  been  true  in  England  in  ordinary  times,  and 
although  of  late  years  it  has  been  frequently  asserted 
that  the  two  great  parties  in  the  House  of  Commons 
are  destined  to  come  to  an  end,  and  be  replaced  by  a 
number  of  independent  groups,  the  prophecy  does  not 
accord  with  experience.  It  is  based  on  the  state  of  the 
Parliament  of  1892,  and  seems  to  arise  from  mistaking 
a  temporary  political  condition  for  a  permanent  one.  The 
sudden  interjection  of  the  question  of  Home  Rule  into 
English  politics  caused  a  new  party  division  on  fresh 
lines,  which  necessarily  broke  up  the  traditional  associ* 


T2  FRANCE. 

ations  of  public  life,  and  threw  both  parties  into  a  state 
of  confusion  that  has  not  yet  disappeared.  On  one 
side,  the  opponents  of  the  measure  were  composed  of 
men  whose  habits  of  thought  had  been  most  diverse ; 
while  the  followers  of  Mr.  Gladstone,  on  the  other  side, 
included  many  Liberals  who  were  forced,  against  their 
will,  to  subordinate  to  Home  Rule  other  matters  which 
they  deemed  more  important.  In  short,  the  introduc- 
tion of  a  new  issue  shattered  the  old  basis  of  cleavage, 
and  it  is  not  surprising  that  new,  solidified  parties  were 
not  formed  in  an  instant.  Moreover  it  may  be  noticed 
that  although  the  Liberal  groups  in  the  late  House  of 
Commons  talked  freely  of  their  dissensions,  they  acted 
as  a  single  party,  and  supported  the  cabinet  by  their 
votes  with  astonishing  fidelity. 

A  division  into  two  parties  is  not  only  the  normal 
result  of  the  parliamentary  system,  but  also 

It  cannot  .    ,  , .   .  ,,     .  ^ 

work  well  an  essential  Condition  OI  its  SUCCeSS.  Sup- 
otherwise.  _  -  1-1  Til 

pose,  tor  example,  that  a  third  party,  like  that 
of  the  Irish  Home  Rulers  under  Parnell,  is  formed,  and 
places  some  one  specific  issue  above  all  others,  with  the 
determination  of  voting  against  any  cabinet  that  does 
not  yield  to  its  demands  on  that  point;  and  suppose 
this  body  becomes  large  enough  to  hold  the  balance 
of  power.  If,  in  such  a  case,  the  two  old  parties  do 
not  make  a  coalition,  or  one  of  them  does  not  absorb 
the  new  group  by  making  concessions,  no  ministry  will 
be  able  to  secure  a  majority.  Every  cabinet  will  be 
overthrown  as  soon  as  it  is  formed,  and  parliamentary 
government  will  be  an  impossibility.  Now  suppose  that 
the  third  party,  instead  of  being  implacably  hostile  to 


TWO  PARTIES  ESSENTIAL.  73 

both  the  others,  is  willing  for  a  time  to  tolerate  a  cabi- 
net from  one  of  them,  —  is  willing,  in  short,  to  allow  the 
ministers  to  retain  office  provided  they  give  no  offense. 
Under  these  circumstances  parliamentary  government 
is  not  impossible,  but  it  is  extremely  difficult.  The 
ministers  are  compelled  to  ride  two  horses  at  once. 
They  must  try  to  conciliate  two  inharmonious  bodies  of 
men,  on  pain  of  defeat  if  either  of  them  becomes  hos- 
tile ;  and  hence  their  tenure  is  unstable  and  their  course 
necessarily  timid.  Now  the  larger  the  number  of  dis- 
cordant groups  that  form  the  majority,  the  harder  the 
task  of  pleasing  them  all,  and  the  more  feeble  and 
unstable  the  position  of  the  cabinet.  Nor  is  the  diffi- 
culty removed  by  giving  portfolios  to  the  members  of 
the  several  groups ;  for  even  if  this  reduces  the  labor  of 
satisfying  the  parties,  it  adds  that  of  maintaining  an 
accord  among  the  ministers  themselves,  and  entails  the 
proverbial  weakness  of  coalition  governments.  A  cab- 
inet which  depends  for  its  existence  on  the  votes  of 
the  Chamber  can  pursue  a  consistent  policy  with  firm- 
ness and  effect  only  when  it  can  rely  for  support  on  a 
compact  and  faithful  majority;  and  therefore  the  par- 
liamentary system  will  give  the  country  a  strong  and 
efficient  government  only  in  case  the  majority  consists 
of  a  single  party.  But  this  is  not  all.  The  opposition 
must  also  be  united.  So  long  as  the  ministry  stands, 
the  composition  of  the  minority  is,  indeed,  of  little  con- 
sequence ;  but  when  that  minority  becomes  a  majority, 
it  must  in  turn  be  a  single  party,  or  the  weakness  of  a 
coalition  ministry  cannot  be  avoided.  It  f ollows  that  a 
division  of  the  Chamber  into  two  parties,  and  two  par 


74  FRANCE. 

ties  only,  is  necessary  in  order  that  the  parliamentary 
form  of  government  should  permanently  produce  good 
results. 

In  France  the  parliamentary  system  has  not  worked 
well,  because  this  condition  has  not  been  ful- 

This  condi-      „,,     ,  -       ml  .  /»-»*• 

tionhasnot    lilled.       Ine  various  groups  or   Monarchists 

been  ful-  . 

filled  in        and  .Donapartists  have  together  formed  in  the 

Chambers  the  party  of  the  Reactionaries,  or 

as  it  is  more  commonly  called,  the  Right.2     The  rest  of 

1  This  is  recognized  by  many  French  writers,  e.  g.,  Lamy,  La  Re'pub~ 
lique  en  1883;  Paul  Laffitte,  Le  Suffrage  Universel  et  la  Regime  Parlementaire, 
pt.  i.  ch.  iii. ;  Saleilles,  in  the  Annals  of  the  American  Academy  of  Political 
Science,  July,  1895,  pp.  57,  64,  65.    But  the  reason  for  the  existence  of  a 
number  of  groups  in  France  seems  to  be  only  partially  understood.    The 
most  clear-sighted  writer  on  this  subject  is  Dupriez.     (See  Les  Ministres, 
vol.  ii.  pp.  363-65,  370-71,  and  386-95.) 

2  For  readers  unfamiliar  with  European  politics  it  may  perhaps  be 
necessary  to  explain  the  meaning  of  the  terms  Right  and  Left,  as  they 
are  used  all  over  the  Continent.     In  England  a  broad  aisle  runs  from  the 
Speaker's  desk  through  the  middle  of  the  House  of  Commons  to  the  main 
entrance  opposite,  and  the  benches  of  the  members  are  arranged  parallel 
to  this  aisle  and  facing  it.     The  Ministry  sit  on  the  front  bench  at  the 
right  of  the  Speaker  (the  so-called  Treasury  Bench),  their  supporters 
taking  seats  behind  and  alongside  of  them,  while  the  opposition  sit  on  the 
left  side  of  the  House.     The  Liberals  and  Conservatives,  therefore,  are 
each  to  be  found  sometimes  on  one  side  of  the  House  and  sometimes  on 
the  other,  according  as  their  party  is  in  power  or  not.     But  on  the  Conti- 
nent the  seats  are  arranged,  as  a  rule,  like  those  of  a  theatre,  as  in  our 
legislative  bodies,  the  ministers  usually  sitting  immediately  in  front  of 
the  Speaker  or  President,  on  a  bench  which  sometimes  faces  him  and 
sometimes  looks  the  other  way,  while  the  conservative  members  sit  on 
the  President's  right,  the  more  liberal  next  to  these,  and  the  radical  on 
his  left.     As  this  arrangement  is  permanent,  the  words  Right  and  Left 
have  come  to  be  generally  used  for  Conservative  and  Liberal ;  and  the 
different  groups  are  often  designated  by  their  position  in  the  Chamber, 
as  the  Right,  the  Centre,  and  the  Left  Centre,  the  Left,  or  the  Extreme 
Left. 


MANY  GROUPS  IN  FRANCE.          75 

the  members  have  been  supporters  of  the  Republic,  and 
have  formed  nominally  a  single  party,  but  they  have 
really  been  held  together  only  by  a  desire  to  maintain 
the  existing  form  of  government,  and  have  seldom 
acted  in  concert  except  when  they  thought  that  threat- 
ened. They  have  always  comprised  men  of  every  shade 
of  opinion,  from  conservatives  to  radicals  and  even 
socialists,  and  would  speedily  have  broken  up  into  com- 
pletely hostile  parties,  if  it  had  not  been  for  the  fear 
of  the  Reactionaries.  Even  under  the  pressure  of  this 
fear  their  cohesion  has  been  very  slight,  for  they  have 
been  divided  into  a  number  of  groups  with  organiza- 
tions which,  though  never  either  complete  or  durable, 
have  been  quite  separate ;  and  again,  these  groups  have 
often  been  subdivided  into  still  smaller  groups,  whose 
members  were  loosely  held  together  by  similarity  of 
opinions  or  desire  for  advancement,  usually  under  the 
standard  of  some  chief,  who  held,  or  hoped  to  win,  a 
place  in  the  cabinet.  In  fact,  the  parties  in  the  Cham- 
ber of  Deputies  have  presented  such  a  series  of  dissolv- 
ing views  that  it  is  very  difficult  to  draw  an  intelligible 
picture  of  them.1 

1  The  line  of  cleavage  between  the  monarchists  and  republicans  has  now 
ceased  to  be  of  much  importance.  All  the  larger  factions  now  profess  to 
be  republican.  These  factions  are  constantly  gaining  or  losing  members  so 
that  it  is  almost  impossible  to  state  their  exact  numerical  strength  at  any 
one  time.  Sometimes  it  happens,  indeed,  that  a  member  of  the  Chamber 
may  profess  to  belong  to  two  political  groups  at  the  same  time.  No  single 
faction  ever  forms  a  majority  of  the  Chamber  so  that  a  coalition  or  bloc 
is  necessary.  The  following  groups  at  present  make  up  the  Chamber  of 
Deputies  but  their  names  afford,  for  the  most  part,  no  indication  of  the 
principles  to  which  they  give  allegiance  :  Conservatives  (or  members  of 
the  extreme  Right)  ;  Nationalists  (members  of  the  Action  Libe'rale 


76  FRANCE. 

During  the  struggle  with  MacMahon,  the  Republicans 
had  been  solidly  united,  but  the  danger  had  not  passed 
very  long  before  the  Radicals  began  to  show  themselves 
independent.  They  soon  became  quite  ready  to  upset 
any  ministry  that  offended  them,  and  in  fact  cabinet  after 
cabinet  was  overthrown  by  the  votes  of  the  Right  and 
the  Extreme  Left.  Even  Gambetta,  who  had  striven  to 
keep  the  Republicans  together,  did  not  escape  this  fate, 
in  spite  of  his  immense  popularity  both  in  the  country 
and  in  the-  Parliament.  He  did  not  consent  to  form  a 
ministry  until  November,  1881 ;  and  after  holding  office 
only  two  months  and  a  half,  he  was  forced  to  resign  by 
the  refusal  of  the  Chamber  to  introduce  the  scrutin  de 
liste  for  the  election  of  deputies.  He  lived  only  till 
the  end  of  the  year,  and  his  death  deprived  France  of 
her  only  great  popular  leader.  After  his  fall,  politics 
followed  the  old  course,  and  there  passed  across  the 
stage  a  series  of  short-lived  ministries. 

During  the  last  few  years  there  has  indeed  been  a 
nearer  approach  to  a  division  of  the  deputies  into  two 
great  parties  —  one  Conservative  and  the  other  Rad- 
ical —  than  at  any  other  time  since  the  birth  of  the 
Republic;  and  yet  the  history  of  the  successive  minis- 
tries during  the  life  of  the  later  Chambers  makes 
it  clear  with  how  little  sharpness  the  lines  are  drawn, 
and  how  little  the  members  of  the  various  groups 

populaire)  ;  Progressives  ;  Republicans  (or  Moderates)  ;  Radicals  ; 
Radical-Socialists  ;  Independent  Socialists  ;  and  Independents.  The 
first  three  groups  make  up  the  Right;  the  last  five  usually  make  up 
the  Left;  but  some  of  the  smaller  groups  keep  shifting  from  side  to 
side. 


CAUSES  OF  THE  STATE  OF  PARTIES.  77 

that  compose  the  majority  can  be  relied  upon  to  be 
faithful  to  the  cabinet.  In  short,  there  has  been  an 
approach  to  the  system  of  two  parties,  but  as  yet 
not  a  very  near  approach,  and  the  numerous  de- 
tached groups  still  remain  the  basis  of  parliamentary 
life. 

Let  us  now  consider  the   reasons   for  the  subdivi- 
sions  of   the    Chamber   into    a   number    of  / 

Causes  of 

groups.     And  first  we  must  look  at  a  source  the  existence 
of   political   dissensions  with  which  we  are  parties  in 
not  familiar   at  home,  but  which   is  to  be 
found  in  almost  every  nation  in  Europe. 

Few  persons  ever  ask  themselves  why  the  bodies  of 
men  who  assemble  every  year  at  the  State 
House  or  the  Capitol  have  power  to  make  apolitical 

_  .  ,          ,  consensus. 

laws.  It  is  not  because  they  nave  more  per- 
sonal force  or  wisdom  or  virtue  than  any  one  else.  A 
congress  of  scientific  men  may  contain  all  these  quali- 
ties in  greater  abundance,  but  it  cannot  change  a  single 
line  in  the  statute-book.  Is  it  because  they  represent 
the  people?  But  we  all  know  that  they  occasionally 
pass  laws  which  the  people  do  not  want,  and  yet  we 
obey  those  laws  without  hesitation.  Moreover,  this 
answer  only  pushes  the  question  one  step  further  back, 
for  why  should  we  obey  the  people  ?  A  few  centuries 
ago  nobody  recognized  any  right  on  the  part  of  the 
people  to  govern  or  misgovern  themselves  as  they  chose, 
or  rather  on  the  part  of  the  majority  to  impose  their 
will  on  the  minority ;  and  in  many  countries  of  the 
world  no  such  right  is  recognized  to-day.  How  does  it 
happen  that  there  is  not  a  class  of  men  among  us  who 


78  FKANCE. 

think  that  the  legislature  does  not  fairly  represent  the 
people,  or  who  think  that  the  right  to  vote  ought  to  be 
limited  by  a  certain  educational  or  property  qualifica- 
tion, or  by  the  profession  of  a  certain  creed ;  and  why 
does  not  some  such  class  of  men  get  up  a  rival  legisla- 
ture ?  The  fact  is  that,  while  we  may  differ  in  regard 
to  the  ideal  form  of  government,  we  are  all  of  one  mind 
on  the  question  of  what  government  is  entitled  to  our 
actual  allegiance,  and  we  are  all  determined  to  yield  to 
that  government  our  obedience  and  support.  In  short, 
a  common  understanding  or  consensus  in  regard  to  the 
basis  and  form  of  the  government  is  so  universal  here 
that  we  feel  as  if  it  were  natural  and  inevitable;  but 
in  all  countries  this  is  not  so.  Such  a  consensus  is  the 
foundation  of  all  political  authority,  of  all  law  and 
order ;  and  it  is  easy  to  see  that  if  it  were  seriously 
questioned,  the  position  of  the  government  would  be 
shaken,  that  if  it  were  destroyed,  the  country  would 
be  plunged  into  a  state  of  anarchy.  Now  persons  who 
do  not  accept  the  consensus  on  which  the  political 
authority  of  the  day  is  based  are  termed  in  France 
Irreconcilables.  Men  of  this  sort  do  not  admit  the 


rightfulness  of  the  existing  government,  and  although 
they  may  submit  to  it  for  the  moment,  their  object 
is  to  effect  a  revolution  by  peaceful  if  not  by  violent 
means.  Hence  their  position  is  essentially  different 
from  that  of  all  other  parties,  for  these  aim  only  at 
directing  the  policy  of  the  government  within  constitu- 
tional limits,  and  can  be  intrusted  with  power  without 
danger  to  the  fundamental  institutions  of  the  nation, 
while  the  Irreconcilables,  on  the  contrary,  would  use 


LACK  OF  A  CONSENSUS.  79 

their  power  to  upset  those  institutions,  and  therefore 
cannot  be  suffered  to  get  control  of  the  state.  They 
form  an  opposition  that  is  incapable  of  taking  office, 
and  so  present  a  disturbing  element,  which  in  a  parlia- 
mentary form  of  government  throws  the  whole  system 
out  of  gear.1 

Another  thing  to  be  noticed  about  a  consensus  is 
that  it  cannot  be  created  artificially,  but  must  A  Con8enaus 
be  the  result  of  a  slow  growth  and  long  tra-  crea\0edbe 
ditions.  Its  essence  lies  in  the  fact  that  it  is  rapldly- 
unconscious.  The  people  of  the  United  States,  for 
example,  could  not,  by  agreement,  give  to  a  dictator  the 
power  the  Czar  wields  in  Russia,  for  except  in  the  pres- 
ence of  imminent  danger  he  would  have  no  authority 
unless  the  people  believed  in  his  inherent  right  to  rule, 
and  the  people  cannot  make  themselves  believe  in  any 
such  right  simply  by  agreeing  to  do  so.  The  TheFrench 
foundation  of  government  is  faith,  not  rea- 
son, and  the  faith  of  a  people  is  not  vital 
unless  they  have  been  born  with  it.2  Now,  8US< 

1  It  is  impossible  IcToTraw  a  sharp  line  between  what  is  revolutionary 
and  what   is  not ;  or  to  define  exactly  an  Irreconcilable.     The  matter 
depends  in  fact  upon  the  opinion  of  the  community.     Thus,  before  1886, 
Home  Rule  might  fairly  be  said  to  have  been  revolutionary,  and  the 
Irish  Home  Rulers  to  have  been  Irreconcilables ;  but  after  Mr.  Gladstone 
made  Home  Rule  a  practical  question  in  English  politics,  it  would  have 
been  absurd  to  call  Parnell's  followers  Irreconcilables. 

2  Curiously  enough  an  exception  to  this  principle,  and  almost  a  solitary 
one,  is  to  be  found  in  the  history  of  the  United  States.     The  generation 
that  framed  the  Constitution  looked  upon  that  document  as  very  imper- 
fect, but  they  clung  to  it  tenaciously  as  the  only  defense  against  national 
dismemberment,  and  in  order  to  make  it  popular,  they  praised  it  beyond 
their  own  belief  in  its  merits.     This  effort  to  force  themselves  to  ad- 
mire the  Constitution  was  marvelously  successful,  and  resulted,  in  the 


80  FRANCE. 

in  France,  the  Revolution  of  1789  destroyed  all  faith  in 
the  political  institutions  of  the  past,  and  was  unable  to 
substitute  anything  else.  It  did,  indeed,  give  birth  to 
a  code  of  law,  and  to  an  administrative  system,  both  of 
which  have  taken  a  strong  hold  on  the  nation,  and  have 
survived  every  change  in  the  government.  These  are 
the  permanent  elements  in  France,  and  the  only  ones 
that  have  acquired  the  blind  force  of  tradition.  They 
supply  a  machinery  that  is  unshaken  by  political  up- 
heavals, and  it  is  this  that  has  made  it  possible  for  the 
country  to  pass  through  so  many  revolutions  without 
falling  into  a  state  of  anarchy.1  But  in  regard  to  in- 
stitutions of  a  purely  political  character,  the  nation 
has  not  been  so  fortunate,  for  the  governments  that 
followed  the  Revolution  were  not  sufficiently  durable 
to  lay  even  a  foundation  for  a  general  consensus,  and 
the  lack  of  continuity  has  so  thoroughly  prevented  the 
steady  growth  of  opinion  that  the  people  have  not 
succeeded  in  acquiring  a  political  creed.  The 

The  effect  ,      .       , 

of  this  on      result  is  that  every  form  or  government  that 

parties.  ..     .       _.  J  .& 

has  existed  in  France  has  its  partisans,  who 
are  irreconcilable  under  every  other ;  while  the  great 
mass  of  the  middle  classes  and  the  peasants  have  no 
strong  political  convictions,  and  are  ready  to  support 
any  government  that  maintains  order.  Thus  the  two 
Empires  bequeathed  to  the  Republic  the  group  of  Bona- 
partists,  while  the  Monarchists  are  a  legacy  from  the 
old  regime  and  the  reign  of  Louis  Philippe.  At  pres- 

next  generation,  in  a  worship  of  the  Constitution,  of  which  its  framera 
never  dreamed. 

1  Cf.  Laffitte,  pp.  208,  209. 


POLITICAL  OPINIONS  THEORETICAL.  81 

ent  it  seems  altogether  probable  that,  if  no  great 
European  crisis  occurs,  the  Right  will  end  by  accept- 
ing the  Republic,  and  if  so  the  irreconcilable  elements 
will  disappear  or  become  insignificant,  and  one  of 
the  chief  obstacles  to  the  formation  of  two  great 
parties,  one  Conservative  and  the  other  Radical,  will  be 
removed. 

But  this  is  only  one  of  several  obstacles,  and   the 
others  are  so  great  that  it  will  probably  be  a  other  causes 
long  time  before  the  system  of  groups  breaks  diriskmof 
down  in  France,  or  is  replaced  by  that  of  two  parties- 
political  parties. 

In  the  first  place,  the  Frenchman  is  theoretical  rather 
than  practical  in  politics.     He  is  inclined  to 

•IT,-*  ,.        T  .  Theoretical 

pursue  an  ideal,  striving  to  realize  his  concep-  character  of 
tion  of  a  perfect  form  of  society,  and  is  re-  political 

•  opinions. 

luctant  to  give  up  any  part  of  it  for  the  sake 
of  attaining  so  much  as  lies  within  his  reach.  Such 
a  tendency  naturally  gives  rise  to  a  number  of  groups, 
each  with  a  separate  ideal,  and  each  unwilling  to  make 
the  sacrifice  that  is  necessary  for  a  fusion  into  a  great 
party.  In  short,  the  intensity  of  political  sentiment 
prevents  the  development  of  real  political  issues.  To 
the  Frenchman,  public  questions  have  an  absolute 
rather  than  a  relative  or  practical  bearing,  and  there- 
fore he  cares  more  for  principles  and  opinions  than 
for  facts.  This  tendency  is  shown  in  the  programmes 
of  the  candidates,  which  are  apt  to  be  philosophic  docu- 
ments instead  of  statements  of  concrete  policy,  and, 
although  published  at  great  length,  often  give  a  com- 
paratively small  idea  of  the  position  of  the  author  on 


82  FRANCE. 

the  immediate  questions  of  the  day.1  It  is  shown  also 
in  the  newspapers,  and  the  use  that  is  made  of  them. 
An  Anglo-Saxon  reads  the  newspapers  chiefly  for  infor- 
mation about  current  events,  and  as  all  the  papers 
contain  very  much  the  same  news,  he  habitually  reads 
only  one.  But  the  French  papers  contain  far  less 
news,  and  as  the  Frenchman  reads  them  largely  for  the 
sake  of  the  editorials,  he  commonly  reads  several  in 
order  to  compare  the  opinions  they  express. 

It  is  partly  on  account  of  this  mental  attitude,  and 

partly  owing  to  the  absence  of  the  habit  of 

do  not          self-government,  and  the  lack  of   sympathy 

«lajiy In      between  different  parts  of  the  country,  that 

politics.  1  r  inn  MI  —  _          .  . 

the  JB  rench  do  not  organize  readily  in  politics. 
This  is  the  more  curious  because  in  military  matters 
they  organize  more  easily  than  any  other  people  in  the 
world ;  and  it  is  no  doubt  the  military  instinct,  as  well 
as  the  want  of  confidence  in  their  own  power  of  po- 
litical organization,  that  disposes  them  to  seek  a  leader 
and  follow  him  blindly  after  he  has  won  their  confi- 

1  Lebon,  France  as  It  Is,  p.  85. 

Abstracts  of  all  the  electoral  programmes  issued  by  the  successful 
candidates  for  the  Chamber  of  Deputies  at  the  elections  of  1889  and 
1893,  together  with  the  results  of  the  ballots,  have  been  published 
by  Duguet,  under  the  title  Les  Deputes  et  les  Cahiers  Electoraux.  These 
volumes  are  very  instructive  ;  and  a  perusal  of  them  shows  that  the 
programmes  of  the  Radicals  are  much  longer  and  less  vague  than 
the  others,  but  often  demand  measures  which  lie  out  of  the  domain 
of  practical  politics,  such  as  revision  of  the  Constitution,  abolition  of 
the  Senate,  abolition  of  state  aid  to  the  churches,  confiscation  of  all 
ecclesiastical  property,  elective  judiciary,  etc.  The  programmes  give  a 
very  good  idea  of  the  candidate's  general  turn  of  mind  ;  and  those  of 
the  Radicals  may  be  said  to  contain  their  conception  of  the  ideal  state 
of  politics  or  of  society.  The  Radicals  are,  indeed,  the  only  group  among 


PARTIES  LITTLE  ORGANIZED.  83 

dence.1  The  inability  to  organize  readily  in  politics 
has  this  striking  result,  that  vehement  as  some  of  the 
groups  are,  and  passionate  as  is  their  attachment  to 
their  creeds,  they  make  little  effort  to  realize  their  aims, 
by  associating  together  their  supporters  in  all  parts  of 
the  country  for  concerted  action.  In  fact,  there  may 
be  said  to  be  no  national  party  organizations  in  France.2 
The  various  groups  into  which  the  deputies  are  divided 
have,  as  a  rule,  no  existence  whatever  outside  of  Par- 
liament, the  candidates  for  seats  merely  calling  them- 
selves in  general  terms,  Moderates,  Radicals,  Socialists, 
or  simply  Republicans  without  further  qualification,  and 
attaching  themselves  to  a  particular  group  after  the 
Chamber  has  met.  Moreover,  the  programmes,  whicli 
are  drawn  up  by  each  candidate  for  himself,  are  only 
individual  confessions  of  faith,  and  are  all  different,  so 
that  there  is  no  policy  which  any  party  as  a  whole  is 
pledged  to  support.  Before  the  opening  of  the  cam 
paign,  indeed,  party  gatherings  or  banquets  take  place, 
and  speeches  are  made,  but  until  recent  elections,  no 
common  platform  of  principles  has  been  issued  except 
.by  the  Socialists.3  It  is  after  the  campaign  has  begun, 
however,  that  the  absence  of  party  organization  is  most 
clearly  seen.  Then  the  struggle  is  conducted  in  each 

the  Republicans  that  can  be  said  to  have  anything  like  a  positive  pro- 
gramme, and  this  is  the  source  both  of  their  strength  and  their  weakness, 

1  Cf.  Channes,  Letter  of  Aug.  22,  1885. 

2  Cf .  Lebon,  France  as  It  Is,  p.  75 ;  Theodore  Stanton  in  the  North 
American  Rev.,  vol.  155,  p.  471.    This  contrasts  strangely  with  the  United 
States,  where   the   machinery   of  a  party  has  sometimes  shown  more 
vitality  than  its  principles. 

8  Daniel,  UAnnee  Politique,  1893,  pp.  254-80. 


84  FRANCE. 

electoral  district  with  very  little  regard  to  the  rest  of 
the  country,  and  in  fact  each  district  appears  like  a 
separate  nation  engaged  in  a  distinct  contest  of  its 
'own.1  Political  effort  becomes  localized,  and  except 
for  the  candidates  themselves,  who  confine  their  labors 
to  their  constituencies,  scarcely  a  man  of  prominence 
opens  his  mouth. 

One    might    suppose    that,   under   a   parliamentary 

form  of  government,  party  organization  would 

Fo?iticai        har(%  be  required,  and  that,  as  in  England, 

mechanism     the  need  of  political  cohesion  would  be  to  a 

in  splitting 

"arties          great  extent  supplied   by  a  strong   ministry 
that  really  led   Parliament   and   the  nation. 
But  here  we  meet  with  some  of  the  other  causes  that 
tend   to   produce   a   multiplicity   of   groups,  —  causes 
that  spring  from  certain  of  the  minor  French  institu- 
tions which  were  referred  to  in  the  beginning  of  the 
first   chapter   as   inconsistent  with   the   parliamentary 
system.     Three  of  these  are  especially  important, — the 
method  of  electing  deputies,  the  system  of  committees 
in  the  Chambers,  and  the  practice  of  interpellations. 
In  France  the  scrutin  de  liste,  or  the  election  of  all 
the  deputies  from  a  department  on  one  ticket, 
of  electing     and  the  scrutin  d'arrondissement,  or  the  use 
of   single   electoral    districts,   have   prevailed 


alternately,  the  latter  being  in  force  at  the  present  day.2 
But  under  both  systems  an  absolute  majority  of  all  the 
votes  cast  is  required  for  election.  If  there  are  more 
than  two  candidates  in  the  field,  and  no  one  of  them 

1  Comte  de  Chaudordy,  La  France  en  1889,  p.  89. 

2  See,  however,  note  on  p.  17,  ante. 


METHOD  OF  CHOOSING  DEPUTIES.  85 

gets  such  a  majority,  a  second  vote,  called  the  ballotage, 
is  taken  two  weeks  later,  and  at  this  a  plurality  is 
enough  to  elect.1  Now  it  is  clear  that  such  a  procedure 
encourages  each  political  group  to  nominate  a  separate 
candidate  for  the  first  ballot.  Suppose,  for  example, 
that  there  are  Reactionary  and  Moderate  Republican 
candidates  in  the  field,  and  that  the  Radicals  prefer  the 
Republican  to  the  Reactionary,  still  they  have  nothing 
to  lose  by  running  a  candidate  of  their  own  on  the  first 
ballot,  for  if  the  Reactionary  can  poll  more  votes  than 
both  his  rivals  combined,  he  will  be  elected  in  any 
event ;  if  he  cannot,  he  will  not  be  elected  whether  the 
Radicals  put  up  a  candidate  of  their  own  or  not.  In 
this  last  case,  the  first  ballot  will  have  counted  for 
nothing,  and  the  Radicals  will  be  able  to  vote  for  the 
Moderate  Republican  at  the  baHotage,  and  elect  him 
then.  They  are  likely,  indeed,  to  gain  a  positive  advan- 
tage by  nominating  a  separate  candidate,  for  if  they 
succeed  in  polling  a  large  vote  on  the  first  ballot,  they 
are  in  an  excellent  position  to  wring  concessions  from 
the  Moderates  as  a  price  of  their  support. 

1  Law  of  June  16,  1885,  Art.  5.  (This  article  was  not  repealed  by  the 
Law  of  Feb.  13,  1889.)  By  the  same  article  a  quarter  as  many  votes  as 
there  are  voters  registered  is  required  for  election  on  the  first  ballot. 

According  to  strict  parliamentary  usage,  the  term  ballotage  is  applied 
only  to  cases  where,  at  the  final  trial,  the  voting  is  confined  by  law  to  the 
two  names  highest  on  the  poll  at  the  preceding  ballot,  but  the  word  is 
popularly  used  for  any  final  ballot  where  a  plurality  is  decisive. 

For  the  choice  of  a  senator  by  the  electoral  college  of  a  department, 
the  votes  of  a  quarter  of  the  college,  and  a  majority  of  all  the  votes 
actually  cast,  are  required  on  the  first  two  ballots,  while  on  the  third  a 
plurality  is  enough.  Law  of  August  2,  1875,  Art.  15.  The  election  of 
delegates  to  the  college  by  the  municipal  councils  is  conducted  in  the 
same  manner.  Law  of  Dec.  9,  1884,  Art.  8. 


86  FRANCE. 

Cumbrous  as  it  is,  this  system  of  voting  dates  back 
to  the  election  of  the  States  General  in  1789,  and, 
with  a  couple  of  short  breaks,  has  been  maintained  in 
France  ever  since.1  The  idea  that  a  representative 
ought  to  be  the  choice  of  a  majority  of  the  people 
seems,  indeed,  to  be  natural  in  democracies,  for  we 
find  it  put  in  practice  elsewhere.  Thus,  in  the  United 
States,  a  majority  vote  was  formerly  very  commonly 
required  for  election,  but  it  is  instructive  to  notice  that 
it  was  found  to  hinder  the  smooth  working  of  two 
political  parties,  and  has  been  generally  though  not 
quite  universally  abandoned.2  The  fact  that  election  by 
majority  did  not  give  rise  to  a  multiplicity  of  parties  in 
America  shows  that  by  itself  it  does  not  produce  that 
result,  where  the  other  influences  favor  the  development 
of  two  parties ;  but  it  is  nevertheless  clear  that  where 
a  number  of  groups  exist,  it  tends  to  foster  them,  and 
prevent  their  fusing  into  larger  bodies.3  The  French 
system  has  been  praised  on  the  ground  that  it  saves 
the  people  from  the  yoke  of  huge  party  machines,  and 

1  Poudra  et  Pierre,  liv.  ii.  ch.  vii. 

3  Stimson,  Aui.  Statute  Law,  §  232.  In  Massachusetts,  election  by  plu- 
rality was  introduced  in  1855.  Const,  of  Mass.,  Amendments,  Art.  xiv. 
For  the  previous  law,  see  Const,  pt.  ii.  ch.  i.  sec-  n.  Art.  iv. ;  ch.  ii.  sec.  I. 
Art.  iii.  ;  sec.  n.  Art.  i. ;  Rev.  Stats,  ch.  iv.  sec.  xni. 

8  At  the  elections  of  1885,  which  were  held  under  the  system  of 
tcrufin  de  liste,  there  were  two  Republican  lists  of  candidates  in  almost  all 
the  departments.  G.  Channes,  Letter  of  Oct.  30,  1885.  At  the  elections 
of  1889  and  1893,  held  under  the  scrutin  d'arrondissement,  there  were  two 
Republican  candidates  in  a  large  proportion  of  the  districts,  the  total 
number  of  candidates  for  a  single  seat  running  as  high  as  ten.  Duguet, 
Les  Deputes  et  les  Cdhiers  Electoraux  en  1889  ;  Id.,  1893.  And  see  Tableau 
des  Elections  a  la  Chambre  des  Deputes,  dresse  aux  Archives  de  la  Chambre, 


THE  SYSTEM  OF  COMMITTEES.  87 

enables  them  to  select  their  candidates  more  freely.1 
This  is  true,  and  it  is  a  great  advantage.  But  the 
converse  is  also  true ;  the  system  tends  to  prevent  the 
formation  of  great  consolidated  parties,  and  that  is 
the  evil  from  which  parliamentary  government  suffers 
in  France  to-day.2 

The  system  of  committees  in  the  Chambers  is  a  still 
more  important  matter.     Each  of  the  Frejnch  Theg  tem 
chambers  is  divided  into  sections  called  Bu-  t^^he 
reafUXj  of  which  there  are  nine  in  the  Senate  Chambers- 
and  eleven  in  the  Chamber  "of  Deputies.3    The  Bureaux 
are  of  equal  size,  and  every  member  of  the  Chamber 
belongs  to  one  and  only  one  of  them,  the  division  being 
made  afresh  every  month  by  lot.     This  is  a  very  old 
institution  in  France,  a  relic  of  a  time  before  parliament- 
ary government  had  been  thought  of ;  for  not  only  do 
we  find  it  in  the  Assembly  of  Notables  and  the  States 
General  that  met  on  the  eve  of  the  Revolution,4  but  it 

1  Alfred  Naquet,  "The  French  Electoral  System,"  in  the  North  Am. 
Rev.,  vol.  155,  pp.  467-68. 

2  It  is  not  a  little  curious  that  just  at  this  time,  when  the  English  system 
of  two  parties  is  thought  by  many  people  to  be  in  danger  of  breaking  up, 
a  motion  should  be  made  in  the  House  of  Commons  to  introduce  election 
by  majority  vote  and  second  ballot.     Such  a  motion  was  made  by  Mr. 
Dalziel  on  April  5,  1895. 

3  For  the  constitution  of  the  Bureaux  and  the  election  of  the  commit- 
tees, see  Poudra  et  Pierre,  liv.  v.  chs.  ii.  and  iii.  ;   Reginald  Dickinson, 
Summary  of  the  Constitution  and  Procedure  of  Foreign   Parliaments,  2d 
ed.  pp.  363-66. 

These  Bureaux  must  not  be  confounded  with  the  Bureau  of  the  Cham- 
ber, which  consists  of  the  President,  the  Vice-Presidents,  and  the  Sec- 
retaries. The  habit  in  France  of  using  the  same  word  with  different 
meanings  is  liable  to  be  the  source  of  no  little  confusion  to  the  students 
of  her  institutions. 

4  Poudra  et  Pierre,  §  976. 


88  FRANCE. 

existed  in  the  ecclesiastical  assemblies,  and  to  some 
extent  in  the  States  General,  at  a  much  earlier  date.1 
The  use  of  the  lot  is,  indeed,  a  survival  from  the  Mid- 
dle Ages,  when  it  was  a  common  method  of  selecting 
officials.2  The  Bureaux  meet  separately  and  have  three 
functions.  The  first  is  that  of  making  a  preliminary 
examination  of  the  credentials  of  members  of  the  Cham- 
ber, which  are  divided  among  them  for  the  purpose. 
The  second  is  that  of  holding  a  preliminary  discussion 
on  bills  brought  into  the  Chamber,  before  they  are 
referred  to  a  committee ;  but  as  a  matter  of  fact  this 
discussion  is  perfunctory,  and  is  limited  to  finding  out 
in  a  general  way  what  members  of  the  Bureau  favor 
or  oppose  the  bill.3  The  third  and  most  important 
function  of  the  Bureaux  is  the  election  of  committees, 
for  with  rare  exceptions  all  the  committees  of  both 
Chambers  are  selected  in  the  same  way.  Each  of  the 
Bureaux  chooses  one  of  its  own  members,  and  the  per- 
sons so  elected  together  constitute  the  committee.  In 
the  case  of  the  more  important  committees  it  is  some- 
times desirable  to  have  a  larger  number  of  members, 
and  if  so  the  Bureaux  choose  in  like  manner  two  or 
even  three  members  apiece,  —  the  Chamber  in  each  case 

1  Sciout,  Histoire  de  la  Constitution  Civile  du  Clerge,  p.  36.      While 
writing,  a  friend  has  pointed  out  to  me  that  the  States  General  which  met 
at  Tours  in  1484  was  divided  into  six  sections  by  provinces.     See  a  jour- 
nal of  this  body  by  Jehan  Masselin,  in  the  Collection  de  Documents  inedits 
sur  V Histoire  de  France  publies  par  ordre  du  Rot,  Paris,  1835,  pp.  66-73. 

2  The  chief  relic  of  the  lot  left  in  Anglo-Saxon  institutions  is,  of  course, 
its  use  in  the  selection  of  the  jury,  —  a  survival  which  is  due  to  the  fact 
already  pointed  out,  that  the  English  royal  justice  developed  at  an  early 
period. 

8  Dupriez,  vol.  ii.  p.  404. 


THE  SYSTEM  OF  COMMITTEES.  89 

directing,  by  its  rules  or  by  special  vote,  the  number  of 
members  to  be  elected.  Thus  the  committee  on  the 
budget,  which  is  the  most  important  one  of  the  year, 
consists  of  three  members  chosen  by  each  of  the 
Bureaux  in  the  Chamber  of  Deputies,  and  contains, 
therefore,  thirty-three  members ;  while  the  correspond- 
ing committee  in  the  Senate  contains  eighteen  members, 
or  two  from  each  Bureau. 

The  committee  on  the  budget  and  the  one  appointed 
to  audit  the  accounts  of  the  government  are  permanent, 
and  remain  unchanged  for  a  year.  A  few  of  the  others 
(those  on  local  affairs,  on  petitions,  on  leave  of  absence, 
and  on  granting  permission  to  members  of  parliament 
to  introduce  bills)  serve  for  a  month  and  then  are 
chosen  afresh.  With  these  exceptions  every  measure 
is  in  theory  referred  to  a  special  committee  elected  by 
the  Bureaux  for  the  purpose ;  but  as  there  are  certain 
to  be  in  every  session  a  number  of  bills  that  cover 
very  much  the  same  ground,  a  rigid  application  of  this 
principle  would  result  in  inconsistent  reports  on  the 
same  matter  by  different  committees,  and  would  throw 
the  work  of  the  Chamber  into  utter  confusion.  A  prac- 
tice has,  therefore,  grown  up  of  treating  certain  com- 
mittees —  such  as  those  on  the  army,  on  labor,  and  on 
railroads  —  as  virtually  permanent,  and  referring  to 
them  all  bills  on  their  respective  subjects.1 

We  have  seen  that  with  rare  exceptions  all  committees, 
whether  permanent,  temporary,  or  special,  are  elected  by 
the  Bureaux,  but  these  last,  being  created  anew  every 
month,  acquire  no  corporate  feeling,  and  hence  have 

1  Dupriez,  vol.  ii.  pp.  385-86. 


VOL.  I. 


90  FRANCE. 

no  real  leaders.  Owing  partly  to  this  fact  they  do  not 
choose  freely,  and  the  chief  of  the  parliamentary  groups 
meet  and  barter  away  the  places  on  the  important  com- 
mittees, which  are  thus  cut  and  dried  beforehand.1  But 
whether  the  choice  of  committee-men  is  really  made  by 
the  Bureaux  or  dictated  by  the  chiefs  of  the  groups, 
the  main  point  to  notice  is  that  the  system  is  entirely 
inconsistent  with  the  parliamentary  form  of  government. 
The  cabinet  cannot  exert  the  same  influence  over  an 
election  conducted  in  this  way  that  it  could  over  one 
made  by  the  Chamber  in  open  session.  In  the  latter 
case  it  might  insist  on  the  choice  of  a  majority  of  the 
committee  from  among  its  own  friends,  and  make  of 
the  matter  a  cabinet  question;  but  it  cannot  treat  the 
failure  of  several  irresponsible  sections  of  the  Chamber 
to  act  in  accordance  with  its  wishes  as  an  expression  of 
want  of  confidence  by  the  Chamber  as  a  whole.  The 
result  is  that  the  committees  are  not  nominated  by  the 
cabinet,  or  necessarily  in  sympathy  with  it ;  and  yet  all 
measures,  including  those  proposed  by  the  government, 
are  referred  to  them  to  revise  as  they  think  best.  Now 
if  the  ministers  are  to  be  responsible  for  directing  the 
work  of  the  Chamber,  they  ought  to  have  a  policy  of 
their  own  and  stand  or  fall  on  that.  They  ought  to  be 
at  liberty  to  determine  their  own  course  of  action,  and 
to  present  their  measures  to  Parliament  in  a  form  that 
they  entirely  approve.  But  if  a  committee  has  power 
to  amend  government  bills,  the  ministers  must  either 
assume  the  burden  of  trying  to  persuade  the  Chamber 
to  reverse  the  amendments,  with  all  the  influence  of  the 
1  Cf.  Simon,  Nos  Homines  d'Etat,  pp.  41,  241. 


THE  SYSTEM  OF  COMMITTEES.  91 

committee  against  them;  or  they  must  take  the  risk 
of  opposing  the  bill  as  reported,  although  they  still 
approve  of  many  of  its  features ;  or  finally  they  must 
accept  the  bill  as  it  stands,  and  become  responsible  for 
a  measure  with  which  they  are  not  themselves  fully 
satisfied.  The  committees  in  fact  use  their  power  with- 
out shrinking,  and  the  annual  budget,  for  example,  has 
been  compared  to  a  tennis-ball  sent  backward  and 
forward  between  the  minister  and  the  committee  until 
a  compromise  can  be  reached.1 

M.  Dupriez,  in  his  excellent  work  on  the  ministers 
in  the  principal  countries  of  Europe  and  America, 
paints  in  very  strong  colors  the  evils  of  the  French 
committee  system.  He  points  out  how  little  influence 
the  ministers  have  with  the  committees,  who  often 
regard  them  almost  as  the  representatives  of  a  hos- 
tile power  in  the  state.2  He  shows  that  while  the 
ministers  have  no  right  to  be  present  at  committee 
meetings,  and  are  invited  to  attend  only  when  they 
'wish  to  express  their  views,  the  committees  claim  a 
right  to  examine  the  administrative  offices,  insist  on 
seeing  books  and  papers,  and  volunteer  advice.3  So 
little  respect,  indeed,  do  the  committees  pay  to  the 
opinions  of  the  cabinet,  and  so  freely  do  they  amend 
its  bills,  that,  as  M.  Dupriez  sarcastically  remarks,  the 
government  and  the  committee  are  never  in  perfect 
accord  except  when  the  former  submits  to  the  latter.4 
He  says,  moreover,  that  when  a  bill  comes  up  for 

1  Simon,  Souviens  toi  du  Deux  Decembre,  p.  314. 

2  Vol.  ii.  pp.  406-7.  «  Id.,  pp.  395,  405,  42£-24,  438-39. 
4  Id.,  pp.  405-6,  412. 


92  FRANCE. 

debate  the  reporter  of  the  committee  is  a  rival  who 
has  great  influence  with  the  Chamber,  while  the  depu- 
ties are  inclined  to  regard  the  ministers  with  jealousy 
and  defiance.1  Nor  do  the  woes  of  the  cabinet  end 
here,  for  its  authority  is  reduced  to  so  low  a  point  that 
its  bills  are  quite  freely  amended  during  the  debate  on 
the  motion  of  individual  deputies.2 

Of  all  the  committees,  the  most  domineering  and  vex- 
atious is  that  on  the  budget.  This  committee  seems  to 
take  pride  in  criticising  the  estimates  and  making  them 
over,  both  as  regards  income  and  expenditures,  while 
each  member  exerts  himself  to  add  appropriations  for 
the  benefit  of  his  own  constituents,  so  that  when  the 
report  is  finally  made  the  government  can  hardly  recog- 
nize its  own  work.3  In  strong  contrast  with  all  this 
is  Dupriez's  description  of  the  procedure  on  the  budget 
in  England.4  There  the  authority  of  the  ministers  is 
expressly  protected  by  a  standing  order  of  the  House  of 
Commons  to  the  effect  that  no  petition  or  motion  for 
the  expenditure  of  the  public  revenue  shall  be  enter- 
tained except  on  the  recommendation  of  the  Crown ; 
and  in  accordance  with  a  firmly  established  practice 
proposals  for  national  taxes  originate  only  with  the 
government.  In  regard  to  amendments  of  the  budget, 
members  of  the  House  may  move  to  diminish,  but 
not  to  increase  an  appropriation,  and  as  a  matter  of 
fact  the  budget  is  rarely  amended  by  the  House  at  all. 
The  comparison  of  the  English  and  French  methods  of 
dealing  with  the  budget  goes  far  to  explain  the  differ- 

1  Dupriez,  vol.  ii.,  p.  411.  8  Id.,  pp.  425-26. 

»  Id.,  p.  412.  *  Id.,  vol.  i.  pp.  110-12. 


INTERPELLATIONS.  93 

ence  in  the  position  of  the  two  cabinets.  Such  a  state 
of  things  as  exists  in  France  cannot  fail  to  lessen  the 
authority  and  dignity  of  the  ministers,  and  place  them 
at  the  mercy  of  the  committees.  It  prevents  them 
from  framing  their  own  programme,  and  insisting  that 
the  deputies  shall  accept  or  reject  it  as  it  stands; 
and  thus,  instead  of  compelling  the  majority  to  act 
solidly  together  under  the  leadership  of  the  cabinet,  it 
allows  any  deputy  to  use  his  place  on  a  committee  as  a 
means  of  urging  his  own  personal  views.  Hence  it 
tends  to  dislocate  the  majority  and  break  it  into  sec- 
tions, with  policies  more  or  less  out  of  harmony  with 
each  other.  While,  therefore,  the  French  scheme  of  com- 
mittees has  good  points,  and  some  features  that  might 
be  very  valuable  under  another  form  of  government,  it 
is  clearly  incompatible  with  the  parliamentary  system.1 

The^  hafoji^of  addre§sjiig^  interpellations  to  tJifLJ^JB" 
isters  has^a  direct  bearing  on_the  ^^^^_g|,  interpeiia- 
the  cabinet  ^ani-iJlfi-Aub^vision  oi]p^ties;  tions* 
for  it  cannot  be  repeateStoo  often  that  these  things 
are  inseparable.  The  existence  of  the  ministry  depends 
on  the  support  of  the  majority,  and  if  that  is  compact 
and  harmonious,  the  ministry  will  be  strong  and 
durable  ;  if  not,  it  will  be  feeble  and  short-lived.  The 
converse  is  also  true.  The  cohesive  force  that  unites 
the  majority  is  loyalty  to  the  cabinet  and  submission 
to  its  guidance,  but  if  the  cabinets  are  weak,  or  are 
constantly  overthrown  at  short  intervals,  they  cannot 

1  Lebon,  UAllemagne,  p.  88,  remarks  that  the  Bureaux  in  the  French 
Chamber  were  intended  to  subdivide  the  factions,  and  accomplish  this 
only  too  well. 


94  FRANCE. 

acquire  the  authority  that  is  necessary  to  lead  the 
majority  and  weld  it  into  a  single  party.  This  is 
especially  the  case  when  the  crises  occur  over  matters 
which  are  not  of  vital  consequence  to  the  bulk  of  the 
followers  of  the  government,  and  yet  that  is  precisely 
the  state  of  things  that  interpellations  tend  to  create. 

It  is  of  the  essence  of  parliamentary  government 
that  the  majority  should  support  the  ministers  so  long, 
and  only  so  long,  as  it  approves  of  their  course,  and  this 
means  their  course  as  a  whole,  in  administration  as  well 
as  in  legislation  ;  for  parliament,  having  the  fate  of  the 
ministers  in  its  hands,  holds  them  responsible  for  all 
their  acts,  and  has  gradually  extended  its  supervision 
over  the  whole  field  of  government.  Now  a  parliament 
can  judge  of  the  legislative  policy  of  the  cabinet  by 
the  bills  it  introduces,  but  it  is  not  so  easy  to  get 
the  information  necessary  for  a  sound  opinion  on  the 
efficiency  of  the  administration.  It  is  largely  to  satisfy 
this  need  that  a  practice  has  grown  up  in  the  House  of 
Commons  of  asking  the  ministers  questions,  which 
may  relate  to  any  conceivable  subject,  and  afford  a 
means  of  putting  the  cabinet  through  a  very  searching 
examination.  Of  course  the  privilege  is  freely  used  to 
harass  the  government,  but  the  answer  is  not  followed 
by  a  general  debate,  or  by  a  vote,  except  in  the  un- 
usual case  where  a  motion  to  adjourn  is  made  for  the 
purpose  of  bringing  the  matter  under  discussion.1 

1  The  motion  to  adjourn  is  the  only  one  that  is  in  order,  and  since 
1882  its  use  has  been  carefully  limited.  May,  Parl.  Practice,  10th  ed. 
p.  240  et  seq.  In  this  form  or  some  other  a  vote  is  occasionally  taken 
on  a  single  detail  of  administration.  The  most  famous  instances  of  late 
years  have  been  the  affair  of  Miss  Cass  in  1887,  where  the  House  of 


INTERPELLATIONS.  95 

A  similar  practice  has  been  adopted  in  France,  and 
questions  are  addressed  to  the  ministers  by  members 
who  really  want  information.  But  another  kind  of 
question  has  also  developed,  which  is  used  not  to  get 
information,  but  to  call  the  cabinet  to  account,  and 
force  the  Chamber  to  pass  judgment  upon  its  con- 
duct. This  is  the  interpellation.1  In  form  it  is  similar 
to  the  question,  but  the  procedure  in  the  two  cases 
is  quite  different.  A  question, can  be  addressed  to  a 
TYiinigteT^rLly-^ifli  hia  j>rmapnt.)  whereas  the  hiterpel- 
lation  is  a  matter  of  right,  which^any  de 
exercise,withojai  regarc^  to^  the  wishes  of  the  cabinet. 
The  ^ime,  moreover,  when  it  shall  be  made  is  fixed  by 
the  Chamber  itself,  and  except  in  matters  relating  to 
foreign  affairs,  the  date  cannot  be  set  more  than  a 
month  ahead.  But  by  far  the  most  important  differ- 
ence consists  in  the  fact  that  the  author  of  the  question 
can  alone  reply  to  the  minister,  no  further  discussion 
being  permitted,  and  no  motion  being  in  order ;  while 
jfchejnterpellation  is  followed  bothjby  a  general  debate 
and  by  motions.  These  are  in  the  form  of  motions  to 


Commons  expressed  its  disapproval  of  the  government's  refusal  to  make 
an  inquiry  by  voting  to  adjourn,  but  where  no  member  of  the  cabinet  felt 
obliged  to  resign ;  and  the  defeat  of  Lord  Rosebery's  ministry  in  1895. 
In  the  last  case  a  motion  was  made  to  reduce  the  salary  of  the  Secretary 
of  State  for  War,  in  order  to  draw  attention  to  the  lack  of  a  sufficient 
supply  of  ammunition,  and  the  motion  was  carried  ;  but  there  can  be  no 
doubt  that  the  cabinet  would  not  have  resigned  if  its  position  had  not 
already  been  hopeless. 

In  the  House  of  Lords  questions  can  always  be  debated.     May,  p.  206. 

1  For  the  rules  and  practice  in  the  case  of  questions,  see  Poudra  et  Pierre, 
liv.  vii.  ch.  iii.,  and  Supp.  1879-80,  §  1539.  In  the  case  of  interpellations, 
Id.,  liv.  viL  ch.  iv. 


96  FRANCE. 

pass  to  the  order  of  the  day,  and  may  be  orders  of  the 
day  pure  and  simple,  as  they  are  called,  which  contain 
no  expression  of  opinion,  or  they  may  be  what  are 
termed  orders  of  the  day  with  a  motive,  such  as  "  the 
Chamber,  approving  the  declarations  of  the  Govern- 
ment, passes  to  the  order  of  the  day."  Several  orders 
of  this  kind  are  often  moved,  and  they  are  put  to  the 
vote  in  succession.  The  ministers  select  one  of  them 
(usually  one  proposed  by  their  friends  for  the  purpose), 
and  declare  that  they  will  accept  that.  If  it  is  rejected 
by  the  Chamber,  or  if  a  hostile  order  of  the  day  is 
adopted,  and  the  matter  is  thought  to  be  of  sufficient  im- 
portance, the  cabinet  resigns.  This  is  a  very  common 
way  of  upsetting  a  ministry,  but  it  is  one  which  puts 
the  cabinet  in  a  position  of  great  disadvantage,  for  a 
government  would  be  superhuman  that  never  made 
mistakes,  and  yet  here  is  a  method  by  which  any  of  its 
acts  can  be  brought  before  the  Chamber,  and  a  vote 
forced  on  the  question  whether  it  made  a  mistake  or 
not.  Moreover,  members  of  the  opposition  are  given 
a  chance  to  employ  their  ingenuity  in  framing  orders 
of  the  day  so  as  to  catch  the  votes  of  those  deputies 
who  are  in  sympathy  with  the  cabinet,  but  cannot 
approve  of  the  act  in  question.1  Now  if  adverse  votes 

1  A  very  good  example  of  the  various  shades  of  praise  or  blame  that 
may  be  expressed  by  orders  of  the  day  can  be  found  in  the  Journal 
Officiel  for  July  9,  1893.  There  had  been  a  riot  in  Paris,  which  had 
not  been  suppressed  without  violence  and  even  bloodshed.  The  police 
were  accused  of  wanton  brutality,  and  an  interpellation  on  the  subject 
was  debated  in  the  Chamber  of  Deputies  on  July  8.  The  order  of  the 
day  quoted  in  the  text,  "  The  Chamber,  approving  the  declarations  of  the 
government,  passes  to  the  order  of  the  day,"  was  adopted,  but  the  follow- 
ing were  also  moved  :  — 


INTERPELLATIONS.  97 

in  the  Chamber  are  to  be  followed  by  the  resignation  of 
the  cabinet  and  the  formation  of  a  new  one,  it  is  evi- 
dent that  to  secure  the  proper  stability  and  permanence 
in  the  ministry,  such  votes  ought  to  be  taken  only  on 
measures  of  really  great  importance,  or  on  questions 
that  involve  the  whole  policy  and  conduct  of  the 

"  The  Chamber,  disapproving  the  acts  of  brutality  of  which  the  police 
have  been  guilty,  requests  the  government  to  give  to  the  police  instruc- 
tions and  orders  more  conformable  to  the  laws  of  justice  and  humanity." 

"  The  Chamber,  disapproving  the  proceedings  of  the  police,  passes  to 
the  order  of  the  day." 

"  The  Chamber,  approving  the  declarations  of  the  government,  and  per-, 
suaded  that  it  will  take  measures  to  prevent  the  violence  of  the  police 
officials,  passes  to  the  order  of  the  day." 

"  The  Chamber,  censuring  the  policy  of  provocation  and  reaction  on  the 
part  of  the  government,  passes  to  the  order  of  the  day." 

"  The  Chamber,  hoping  that  the  government  will  give  a  prompt  and 
legitimate  satisfaction  to  public  opinion,  passes  to  the  order  of  the  day." 

"  Considering  that  the  government  has  acknowledged  from  the  tribune 
that  its  policy  has  caused  in  Paris  '  sad  occurrences,'  '  deeds  that  must 
certainly  be  regretted,'  and  *  some  acts  of  brutality,'  the  Chamber  takes 
notice  of  the  admission  of  the  President  of  the  Council,  demands  that  the 
exercise  of  power  shall  be  inspired  by  the  indefeasible  sentiments  of  jus- 
tice, of  foresight,  and  of  humanity,  and  passes  to  the  order  of  the  day." 

"  The  Chamber,  convinced  that  the  government  of  the  Republic  ought 
to  make  the  law  respected  and  maintain  order,  approving  the  declarations 
of  the  government,  passes  to  the  order  of  the  day." 

"The  Chamber,  regretting  the  acts  of  violence  on  the  part  of  the 
police,  and  taking  notice  of  the  declarations  of  the  government,  passes  to 
the  order  of  the  day." 

"The  Chamber,  approving  the  declaration  whereby  the  government 
has  announced  its  desire  to  put  an  end  to  the  practices  and  habits  of  the 
police  which  have  been  pointed  out,  passes  to  the  order  of  the  day." 

"  The  Chamber,  convinced  of  the  necessity  of  causing  the  laws  to  be 
respected  by  all  citizens,  passes  to  the  order  of  the  day." 

In  this  case,  by  voting  priority  for  the  first  of  these  motions  and 
adopting  it,  the  Chamber  avoided  the  snares  prepared  for  it  by  the  in" 
geuious  wording  of  the  others. 


98  FRANCE. 

administration.  It  is  evident  also  that  they  ought  not 
to  be  taken  hastily,  or  under  excitement,  but  only  after 
the  Chamber  has  deliberately  made  up  its  mind  that  it 
disapproves  of  the  cabinet,  and  that  the  country  would 
on  the  whole  be  benefited  by  a  change  of  ministers. 
The  reverse  of  all  this  is  true  of  the  French  system  of 
interpellations,  and  a  cabinet  which  in  the  morning 
sees  no  danger  ahead,  and  enjoys  the  confidence  of  the 
Chamber  and  the  nation,  may  be  upset  before  nightfall 
by  a  vote  provoked  in  a  moment  of  excitement  on  a 
matter  of  secondary  importance. 

The  frequency  with  which  interpellations  are  used  to 
upset  the  cabinet  may  be  judged  by  the  fact  that  out  of 
the  twenty-one  ministries  that  resigned  in  consequence 
of  a  vote  of  the  Chamber  of  Deputies  during  the 
years  1879-1896,  ten  went  to  pieces  on  account  of 
orders  of  the  day  moved  after  an  interpellation,  or  in 
the  course  of  debate.1  Several  of  these  orders  covered, 
indeed,  the  general  policy  of  the  cabinet,  but  others — 
like  the  one  relating  to  the  attendance  of  the  employees 
of  the  state  railroads  at  a  congress  of  labor  unions, 
which  occasioned  the  resignation  of  Casimir-Perier's  min- 
istry in  May,  1894  —  had  no  such  broad  significance. 
Moreover,  the  production  of  actual  cabinet  crises  is  by 

1  Cf.  Haucour,  Gouvernements  et  minuteres  de  la  1116  republique  fran- 
caise  (1870-1893}  ;  Muel,  Gouvernements,  ministeres  et  constitutions  de  la 
France  depuis  cent  ans. 

Among  the  resignations  brought  about  in  this  way,  I  have  counted  that 
of  Rouvier's  cabinet  in  1887,  although  this  was  caused  not  by  the  vote  of 
an  order  of  the  day,  but  by  the  refusal  of  the  Chamber  to  postpone  the 
debate  on  an  interpellation,  and  although  the  cabinet  continued  to  hold 
office  for  a  few  days  pending  the  resignation  of  President  GreVy. 


INTERPELLATIONS.  99 

no  means  the  whole  evil  caused  by  interpellations.  The 
enfeebling  of  the  authority  of  the  ministers  by  hostile 
votes  about  affairs  on  which  they  do  not  feel  bound 
to  stake  their  office  is,  perhaps,  an  even  more  serious 
matter,  for  no  cabinet  can  retain  the  prestige  that  is 
necessary  to  lead  the  Chambers  in  a  parliamentary  gov- 
ernment, if  it  is  to  be  constantly  censured  and  put  in  a 
minority  even  in  questions  of  detail.  The  ministers  are 
not  obliged,  it  is  true,  to  answer  interpellations,1  but 
unless  some  reason  of  state  can  be  given  for  refusing, 
such  as  that  an  answer  would  prejudice  diplomatic 
negotiations,  a  refusal  would  amount  to  a  confession  of 

O  ' 

error,  or  would  indicate  a  desire  to  conceal  the  fact,  and 
would  weaken  very  much  the  position  of  the  cabinet. 

The  large  part  that  interpellations  play  in  French 
politics  is  shown  by  the  fact  that  they  arouse  more  pop- 
ular interest  than  the  speeches  on  great  measures ; 2  and, 
indeed,  the  most  valuable  quality  for  a  minister  to 
possess  is  a  ready  tact  and  quick  wit  in  answering 
them.3 

The  first  two  institutions  referred  to  as  not  in  har- 
mony with  parliamentary  government  —  that  is,  the 
method  of  electing  deputies  and  the  system  of  com- 
mittees in  the  Chambers — have  real  merit.  Both  tend 
to  check  the  tyranny  of  party,  and  under  a  form  of 
government  where  the  existence  of  two  great  parties 
was  not  essential,  they  might  be  very  valuable.  But, 
except  in  a  despotism,  the  interpellation  followed  by  a 
motion  expressing  the  judgment  of  the  Chamber  is  a 

1  Poudra  et  Pierre,  §  1555.  2  Simon,  Nos  Hwnmes  d'Etat,  p.  27. 

8  Simon,  Dieu,  Patrie,  Liberte,  p.  379. 


100  FRANCE. 

purely  vicious  institution.  It  furnishes  the  politicians 
with  an  admirable  opportunity  for  a  display  of  parlia- 
mentary fireworks ;  but  it  is  hard  to  see  how,  under  any 
form  of  popular  government,  it  could  fail  to  be  mis- 
chievous, or  serve  any  useful  purpose  that  would  not 
be  much  better  accomplished  by  a  question  followed  by 
no  motion  and  no  vote.  The  plausible  suggestion  has 
been  made  that  the  administration,  being  free  from 
supervision  by  the  courts  of  law,  can  be  brought  to 
account  for  its  acts  only  in  this  way ; 1  but  surely  the 
same  result  could  be  as  well  accomplished  by  the 
simpler  process  of  the  question,  and  it  is  hard  to  see 
any  reason  for  imperiling  the  existence  or  the  prestige 
of  the  cabinet  to  rectify  some  matter  of  trifling  conse- 
quence.  The  practice  arose  from  the  fact 
^at,  owing  to  the  immense  power  of  the 
plrt°df  the  executive  in  France,  and  the  frequency  with 
Chamber.  wnich  that  power  has  been  used  despotically, 
the  legislature  has  acquired  the  habit  of  looking  on  the 
cabinet  officers  as  natural  enemies,  to  be  attacked  and 
harassed  as  much  as  possible.2  But  such  a  view,  which 

1  See  Vicomte  d'Avenel,  "  La  Rdforme  Administrative  —  La  Justice," 
Revue  des  Deux  Mondes,  June  1,  1889,  pp.  595-96. 

2  M.  Dupriez,  in  the  work  already  cited  (vol.  ii.  p.  253  et  seq.),  has 
explained  the  strength  of  this  feeling  by  a  most  valuable  study  of  the 
history   of  the   relations  between  the  ministers  and  the   legislature   in 
France.     He  points  out  that  it  existed  at  the  outbreak  of  the  Revolution, 
for  the  cahiers  or  statements  of  grievances  prepared  by  the  meetings  of 
electors  held  to  choose  members  of  the  States  General  in  1789  express  a 
widespread  dislike  and  distrust  of  all  ministers  as  such.     He  then  shows 
how  the  Constituent  Assembly  tried  to  curtail  the  power  of  the  ministers, 
and  reduce  their  functions  to  a  simple  execution  of  its  own  orders.     It  is 
unnecessary  here  to  follow  the  subject  in  detail.     It  is  enough  to  remark 
that  a  large  part  of  the  political  history  of  France  since  the  Revolution 


INTERPELLATION  J(/I 

is  defensible  enough  when  the  ministers  are  independ- 
ent of  the  Parliament,  becomes  irrational  when  they  are 
responsible  to  it,  and  bound  to  resign  on  an  adverse  vote. 
Strange  as  it  may  seem,  the  development  of  inter- 
pellations has  coincided  very  closely  with  that  of  parlia- 
mentary government ; l  and,  in  fact,  the  French  regard 
the  privilege  as  one  of  the  main  bulwarks  of  political 
liberty.  It  is  this  same  feeling  of  antagonism  to  the 
government  that  has  given  rise  to  the  overweening 
power  of  the  committees  in  the  Chamber,  and  their 
desire  to  usurp  the  functions  of  the  ministers.  The 
extent  to  which  this  feeling  is  carried  by  the  Radicals 
is  shown  by  the  proposal  made  some  years  ago  to 
divide  the  whole  Chamber  into  a  small  number  of  per- 
manent grand  committees,  such  as  existed  in  1848,  in 
order  to  bring  the  ministers  even  more  completely 
under  the  control  of  the  deputies ;  the  ideal  of  the 
Extreme  Radicals  being  the  revolutionary  convention, 
which  drew  all  the  powers  of  the  state  as  directly  and 
absolutely  as  possible  into  its  own  hands.2  The  less 

is  filled  with  struggles  for  power  between  the  executive  and  the  legisla- 
ture, in  which  the  former  has  twice  won  a  complete  victory,  and  deprived 
the  representatives  of  the  people  of  all  influence  in  the  state.  Under 
these  circumstances  the  suspicion  and  jealousy  of  the  cabinet  shown  by 
Liberal  statesmen  is  not  surprising. 

1  The  practice  was  first  regularly  established  at  the  accession  of  Louis 
Philippe,  the  period  when  cabinets  became  thoroughly  responsible  to  the 
Chamber  ;  and  it  was  freely  used  during  the  Republic  of  1848.  After  the 
Coup  d'Etat  it  was,  of  course,  abolished  ;  but  toward  the  end  of  his  reign 
Napoleon  III.,  as  a  part  of  his  concessions  to  the  demand  for  parliamentary 
institutions,  gradually  restored  the  right  of  interpellation.  Finally,  under 
the  present  Republic  the  right  has  been  used  more  frequently  than  ever 
before.  See  Poudra  et  Pierre,  §§  1544-49;  Dupriez,  vol.  ii.  pp.  305, 317-18. 

3  Cf.  De  la  Berge,  "  Les  Grands  Comit^s  Parlementaires,"  Revue  des 
Deux  Mondes,  Dec.  1, 1889. 


1C2  FRANCE. 

violent  Kepublicans  are,  no  doubt,  very  far  from  accept 
ing  any  such  ideal,  but  still  they  cannot  shake  out  of 
their  minds  the  spirit  of  hostility  to  the  administration 
which  has  been  nurtured  by  long  periods  of  absolute 
rule.  They  fail  to  realize  that  when  the  ministry 
becomes  responsible  to  the  deputies,  the  relations  be- 
tween the  executive  and  the  legislature  are  radically 
changed.  The  parliamentary  system  requires  an  entire 
harmony,  a  cordial  sympathy,  and  a  close  cooperation 
between  the  ministers  and  the  Chamber;  and  to  the 
obligation  on  the  part  of  the  cabinet  to  resign  when  the 
majority  withdraws  its  approval,  there  corresponds  a 
duty  on  the  part  of  the  majority  to  support  the  min- 
isters heartily  so  long  as  they  remain  in  office.  Par- 
liamentary government,  therefore,  cannot  be  really 
successful  in  France  until  a  spirit  of  mutual  confidence 
between  the  cabinet  and  the  Chamber  replaces  the 
jealousy  and  distrust  that  now  prevail. 

A  comparison  of  the  political  history  of  France  and 
Comparison  England  during  corresponding  years  shows  to 
French  what  extent  the  French  procedure  interferes 
discipline  and  disintegrates  the  parties. 
England  the  Liberals  came  into  power  after 
the  elections  of  1892  with  a  small  majority 
in  the  House  of  Commons ;  and,  although  the  sup- 
porters of  the  government  were  far  from  harmonious, 
were,  in  fact,  jealous  of  each  other  and  interested  in 
quite  different  measures,  the  perfection  of  the  parlia- 
mentary machinery  enabled  the  ministers  to  keep  their 
followers  together  and  maintain  themselves  in  office 
for  three  years.  In  France,  on  the  other  hand,  the 


EFFECTS  OF  THE  STATE  OF  PARTIES.  103 

elections  of  1893  produced  a  majority  which,  if  not 
so  large,  was  far  more  homogeneous ;  and  indeed,  if  we 
compare  the  position  of  some  of  the  outlying  groups 
with  that  of  certain  sections  of  the  English  Liberal 
party,  it  is  fair  to  say  that  the  majority  in  France  was 
both  larger  and  more  homogeneous.  Yet  within  two 
years  this  majority  suffered  three  cabinets  which  rep- 
resented it  to  be  overthrown  on  interpellations  about 
matters  of  secondary  importance,  and  finally  became 
so  thoroughly  disorganized  that  it  lost  control  of  the 
situation  altogether. 

We  have  surveyed  some  of  the  causes  of  the  condi- 
tion of  political  parties  in  France.     Let  us  Results  of 
now  trace  a  few  of  its  results.    In  the  first  ti^T*" 
place,  the  presence  of  the  Eeactionaries  de-  par  ies* 
prives   cabinet   crises  of  the   significance   they  might 
otherwise  possess.     The   defeat  of  the  min-  , 

Owing  to  the 

isters  does  not  ordinarily  mean  the  advent 
to  power  of  a  different  party,  because  there 
is  no  other  party  capable  of  forming  a  cabi- 
net,  —  not  the  Reactionaries,  for  they  are 
irreconcilable  and  hostile  to  the  Republic,  and  party* 
of  late  years  have  been  far  too  few  in  numbers;  nor 
those  Republicans  who  have  helped  the  Right  to  turn 
out  the  ministers,  because  by  themselves  they  do  not 
constitute  a  majority  of  the  Chamber.  The  new  cabi- 
net must,  therefore,  seek  its  support  mainly  in  the 
ranks  of  the  defeated  minority,  and  hence  is  usually 
formed  from  very  much  the  same  material  as  its  prede- 
cessor. In  fact,  a  number  of  the  old  ministers  have 


104  FRANCE. 

generally  kept  their  places,  at  most  an  attempt  being  made 
Effects  of    ^°  ga*n  a  liktle  more  support  from  the  Eight 


tins.  or  Left  by  giving  one  or  two  additional  port- 

folios to  the  Moderates,  Radicals,  or  Socialists.1  When 
a  ministry  falls,  the  parliamentary  cards  are  shuffled,  a 
few  that  have  become  too  unpopular  or  too  prominent 
are  removed,  and  a  new  deal  takes  place.  So  true  is  this, 
that  out  of  the  twenty-four  ministries  that  succeeded 
each  other  from  the  time  President  MacMahon  ap- 
pointed a  Republican  cabinet  in  1877  until  1897,  only 
three  contained  none  of  the  retiring  ministers,  the  aver- 
age proportion  of  members  retained  being  about  two 
fifths.2 

Now,  the  fact  that  the  fall  of  the  cabinet  does  not 
involve  a  change  of  party  has  two  important  effects:  by 
removing  the  fear  that  a  hostile  opposition  will  come 
to  power,  it  destroys  the  chief  motive  for  discipline 
among  the  majority;3  and  by  making  the  Chamber  feel 
that  a  change  of  ministers  is  not  a  matter  of  vital  conse- 
quence, it  encourages  that  body  to  turn  them  out  with 
rash  indifference.  The  result  is  that  the  cabinets  are 
extremely  short-lived;  during  the  thirty-seven  years  be- 
tween 1875  and  1912  —  there  were  forty-five  of  them,  so 
that  the  average  duration  of  a  French  cabinet  has  been  a 

1  Lebon,  France  as  It  Is,  p.  94. 

2  Cf.  Haucour,  Gouv.  et  Min.;  Muel,  Gouv.,  Min.  et  Const.;  Dupriez, 
vol.  ii.  pp.  338,  343.     The  three  exceptions  were  the  cabinets  of  Brisson 
in  1885,  Bourgeois  in  1895,  and  Meline  in  1896. 

8  This  is  very  clearly  pointed  out  by  Dupriez,  Les  Ministres,  vol.  ii. 
p.  390. 


CABINETS  SHORT-LIVED  AND  WEAK.  105 

little  less  than  ten  months.1  The  same  fact  explains, 
moreover,  the  persistence  of  the  system  of  interpella- 
tions, for  if  a  change  of  ministry  does  not  imply  a  differ- 
ent programme,  there  is  no  self-evident  impropriety  in 
overthrowing  a  cabinet  on  a  question  that  does  not  in-  I 
volve  a  radical  condemnation  of  its  policy. 

The  subdivision  of  the  Republican  party  into  sepa- 
rate groups  has  also  an  important  bearing  on  Owingto 
the  character  of  the  ministry.  Instead  of 
representing  a  united  party,  the  cabinet  must 
usually  rely  for  support  on  a  number  of  these 
groups,  and  the  portfolios  must  be  so  dis-  f 
tributed  as  to  conciliate  enough  of  them  to  form  a 
majority  of  the  Chamber.2  As  a  rule,  therefore,  the 
cabinet  is  in  reality  the  result  of  a  coalition,  and  suffers 
from  the  evils  to  which  bodies  of  that  kind  are  always 
subject.  The  members  tend  to  become  rivals  rather 
than  comrades,  and  each  of  them  is  a  little  inclined 
to  think  less  of  the  common  interests  of  the  cabinet 
than  of  his  own  future  prospects  when  the  combina- 
tion breaks  up.3  Such  a  government,  moreover,,  ^is 
essentially  w^alr,  for  it  nannot  afford  to  refuse  the  de- 
group  whofift  dftfowtiftn  may 


1  I  have  not  counted  the  reappointment  of  the  Dupuy  ministry  on  the 
election  of  Casimir-Perier  to  the  presidency  as  the  formation  of  a  new 
cabinet. 

2  Only  on  two  or  three  occasions  has  the  cabinet  been  supported  by  a 
group  which  has  contained  by  itself  anything  like  a  majority  of  the 
deputies. 

8  Cf.  Dupriez,  vol.  ii.  pp.  348-49.     Lebon,  France  as  It  7s,  p.  85,  speaks 
of  the  never-ending  struggles  for  mastery  within  the  cabinet. 


106  FRANCE. 

its  existence.1  The  ministers  are  not  at  the  head  of  a 
gfertrpSrtythat  is  bound  to  follow  their  lead,  and  yet 
they  must  secure  the  votes  of  the  Chamber  or  they 
cannot  remain  in  office.  Hence  they  must  seek  support 
as  best  they  may,  and  as  they  cannot  rule  the  majority, 
they  are  constrained  to  follow  and  flatter  it ; 2  or  rather 
they  are  forced  to  conciliate  the  various  groups,  and, 
It  must  win  as  ^e  members  of  the  groups  themselves 
^anthj  are  loosely  held  together,  they  must  grant 
favors  to  the  individual  deputies  in  order  to 
secure  their  votes.  This  is  not  a  new  feature  in  French 
politics.  It  is  said  that  during  the  reign  of  Louis 
Philippe,  the  government  kept  a  regular  account  with 
each  deputy,  showing  his  votes  in  the  Chamber  on  one 
side,  and  the  favors  he  had  been  granted  on  the  other, 
so  that  he  could  expect  no  indulgence  if  the  balance 
were  against  him.3  Nor  has  the  cause  of  the  evil 
changed.  It  is  the  same  under  the  Third  Republic  that 
it  was  under  the  Monarchy  of  July,  for  in  both  cases 

j5  the  lack  of  great  national   parties   with  definite  pro- 
grammes has  made  the  satisfaction  of  local  and  personal 

I  interests  a  necessity. 

We  are,  unfortunately,  only  too  familiar  in  this 
Political  use  country  with  the  doctrine  that  to  the  victors 
of  offices  belong  the  spoils.  In  France  we  find  the 
same  thing,  although  it  is  not  acknowledged  so  openly, 
and  is  disguised  under  the  name  of  epuration,  or  the 

1  Cf.  Dupriez,  vol.  ii.  pp.  347-48,  434-35. 

2  Cf.  Simon,  Nos  Hommes  d'Etat,  ch.  vii.  p.  iii. 

8  Hello,  Du  Regime  Constitutionnel,  quoted  by  Minghetti,  /  Partiti 
Politici,  p.  101  ;  and  see  G.  Lowes  Dickinson,  Revolution  and  Reaction  in 
Modern  France,  pp.  118-20. 


PATRONAGE  USED  TO  PLEASE  DEPUTIES.         107 

purification  of  the  administration  from  the  enemies  of 
the  Republic.  The  practice  of  turning  political  foes 
out  of  office  and  substituting  one's  friends  seems  to 
have  begun  during  President  MacMahon's  contest  with 
the  Chamber,  when  the  Reactionary  party  dismissed  a 
large  number  of  officials  who  had  served  under  former 
cabinets.1  After  the  Right  had  been  overthrown  in 
1877,  there  arose  a  cry  that  the  Republic  ought  not 
to  be  administered  by  men  who  did  not  sympathize 
with  it,  and  would  naturally  throw  their  influence 
against  it  ;  but  although  the  fear  of  danger  to  the  form 
of  government  was  no  doubt  genuine  at  first,  the  cry 
became  before  long  a  transparent  excuse  for  a  hunt 
after  office.2  In  speaking  of  this  subject,  however,  it 
must  be  remembered  that  ^rance^ifl  not  dkdded_into 
•two  ^Jf  flt  p^tm  iyHf»^  fm^^prl  each  other  jn  power  T 


thoJUnited  States,  does  not  occur^    The  process  is  con- 
tinuous, but  slower  and  less  thorough.     On  andother 
the    other   hand,    the   evil   in   France   is  by  P*1^68- 
no  means  limited  to  office-seeking,   for  owing  to  the 
immense  power  vested  in  the  government,  the  favors 
which  the   deputies  demand  and  exact  as  the  price  of 
their  votes  extend  over  a  vast  field.     Nor  do  they  show 
any  false  modesty  about  making  their  desires  known. 

1  See  Channes,  pp.  18-19,  231-32. 

2  See  the  remarkable  little  book  by  Edmond  Scherer,  La  Democratic  et 
la  France  ;  Channes,  Nos  Fautes  (passim)  ;  Simon,  Nos  Hommes  d'Etat, 
pp.  114-15,  and  ch.  vi.  ii.  ;  Dupriez,  vol.  ii.  pp.  502-9  ;  Lamy,  La  Repub- 
Uque  en  1883,  pp.  6-8,  22  ;  and  see  a  highly  colored  account  by  Hurlbert, 
u  The  Outlook  in  France,"  Fortnightly  Rev.,  voL  55,  p.  347. 


I 

108  f  FRANCE. 

They  do  not  hesitate  to  invade  the  executive  offices, 
and  meddle  directly  in  the  conduct  of  affairs.1  Even 
the  prefect,  who  has  the  principal  charge  of  local  ad- 
ministration, is  not  free  from  their  interference.  He 
is  liable  to  lose  his  place  if  he  offends  the  Republican 
deputies  from  his  department,  and  is  therefore  obliged 
to  pay  court  to  them  and  follow  their  lead.  In  short,  the 
prefect  has  become,  to  a  great  extent,  the  tool  of  these 
autocrats ;  and  his  dependence  is  increased  by  the  fact 
that  nowadays  he  does  not  usually  remain  in  office  long 
enough  to  acquire  a  thorough  knowledge  of  the  local 
wants,  or  to  exercise  a  strong  personal  influence.  I  do 
not  mean  that  he  has  become  corrupt ;  far  from  it. 
The  level  of  integrity  among  French  officials  appears  to 
be  extremely  high,  and  though  wedded  to  routine,  their 
efficiency  is  great ; 2  but  the  discretion  in  their  hands 
is  enormous,  and  in  using  it  they  must  take  care  not 
to  displease  his  Majesty  the  Deputy.3 

Of  course  the  deputies  do  not  wield  this  immense  in- 
Deputies  fluence  to  forward  their  own  private  ends  alone. 
cu!lyef»v°or  They  are  representatives,  and  must  use  their 
local  Sm-  position  for  the  benefit  of  the  persons  they 
represent.  But  whom  do  they  represent? 
The  people  at  large?  No  representative  ever  really 
does  that.  So  far  as  he  is  actuated  by  purely  conscien- 
tious motives  he  represents  his  own  ideas  of  right,  and 
for  the  rest  he  represents  primarily  the  men  who  have 

1  Dupriez,  vol.  ii.  pp.  435,  507-8  ;  Channes,  pp.  253-56  ;  Lamy,  pp. 
21-26  ;  Laffitte,  Le  Suffrage  Universel,  pp.  54-59. 

2  Simon,  «  Stability  of  the  French  Republic,"  The  Forum,  vol.  10,  p.  383. 
8  Cf .  Channes,  Letter  of  Oct.  1,  1884 ;  Laffitte,  pp.  56-58  ;  Dupriez, 

Tol.  ii.  pp.  471-72,  506-9. 


POWER  OF  LOCAL  COMMITTEES.  109 

elected  him,  and  to  whom  he  must  look  for  help  and 
votes  in  the  next  campaign.  In  some  countries  this 
means  the  party,  and  those  classes  that  hang  on  the 
skirts  of  the  party  and  may  be  prevailed  upon  to  fall 
into  line.  But  in  France  there  are  no  great  organized 
parties,  and  hence  we  must  consider  how  candidates  are 
nominated  there.  The  government,  at  the  present  day, 
does  not  put  forward  official  candidates  of  its  own,  as 
was  commonly  done  during  the  Second  Empire ; 1  and, 
indeed,  it  is  not  supposed  to  take  an  active  part  in 
elections.  This  last  principle  is  not  strictly  observed, 
for  the  administrative  officials  at  times  exert  no  little 
influence  in  important  campaigns,  and  the  government 
is  said  to  have  spent  a  good  deal  of  money  to  defeat 
Boulanger  in  1889.  Still  there  is  nothing  resembling 
the  control  of  elections  under  Napoleon  III.,  and  es- 
pecially there  is  no  interference  with  the  selection  of 
candidates,  this  matter  being  left  to  the  spontaneous 
movement  of  the  voters  themselves.  The  usual  method 
of  proceeding  is  as  follows  :  a  number  of  men  in  active 
politics  in  a  commune,  or  what  we  should  call  the  wire* 
pullers,  form  themselves  into  a  self-elected  committee, 
the  members  usually  belonging  to  liberal  or  semi-liberal 
professions,  and  very  commonly  holding  advanced  views, 
which  are  apt  to  go  with  political  activity  in  France. 
The  committees  or  their  representatives  meet  together 
to  form  an  assembly,  which  prepares  the  programme, 
nominates  the  candidate,  and  proclaims  him  as  the  can- 
didate of  the  party.2  These  self-constituted  committees, 

1  Simon,  Dieu,  Patrie,  Liberte,  p.  372. 

3  Simon,  Nos  Hommes  d'Etat,  pp.  17-25  ;  Scherer,  La  Democratic  et  la 


110  FRANCE. 

therefore,  have  the  nomination  entirely  in  their  own 
hands ; l  and,  except  in  the  larger  cities,  a  candidate 
owes  his  position  largely  to  local  influence  and  personal 
interests.2  Sometimes  he  has  won  prominence  by  a 
clever  speech  at  a  local  meeting.  Sometimes  he  has 
earned  gratitude  by  services  rendered  in  his  profession, 
or  otherwise.3 

After  the  candidate  is  nominated,  his  first  care  is  to 
issue  his  programme,  and  under  the  system  of  single 
electoral  districts,  each  candidate,  as  has  already  been 
observed,  has  a  separate  programme,  which  expresses 
only  his  particular  views.  The  active  campaign  is  car- 
ried on  by  means  of  placards  posted  on  walls  and 
fences,  which  make  a  great  show,  but  win  few  votes ; 
and  what  is  far  more  effective,  by  means  of  newspapers 
and  the  stump.4  The  stump,  curiously  enough,  is  used 

France,  pp.  22-24  ;  Reinach,  La  Politique  Opportuniste,  186-88  ;  Laffitte, 
op.  cit.,  pp.  64-69. 

1  Since  the  system  of  scrutin  de  liste  has  been  given  up  and  the  single 
electoral  districts  have  been  reestablished,  the  matter  is  said  to   have 
become  somewhat  more  simplified.    It  is  stated  that  the  nominating  com- 
mittees are  now  formed,  at  least  in  many  cases,  without  any  meeting  of 
delegates  from  the  communes  ;  and  that  their  function  lies  not  in  the 
selection  of  a  candidate,  but  rather  in  helping  the  candidate  in  whose 
behalf  they  have  been  organized,  and  acting  as  his  sponsors.    (See  Alfred 
Naquet,  "  The  French  Electoral  System,"  North  American  Rev.,  vol.  155, 
p.  466.     But  see  Charles  Benoist,  "De  TOrganization  du  Suffrage  Uni- 
versel,"  Revue  des  Deux  Mondes,  July  1,  1895,  pp.  15-20.)     However  this 
may  be,  the  close  relations  between  the  deputy  and  a  small  self-consti- 
tuted clique  of  local  politicians,  which  is  the  essential  point  in  the  French 
electoral  system,  remains  very  much  the  same. 

2  Simon,  Nos  Hommes  d'Etat,  pp.  24-25. 
8  Chaudordy,  La  France  en  1889,  p.  96. 

4  Alfred  Naquet,  "The  French  Electoral  System,"  North  American 
Rev.,  vol.  155,  pp.  468-70. 


POWER  OF  LOCAL  COMMITTEES.  Ill 

very  little  except  by  the  candidates  themselves,1  who 
constantly  speak  at  political  rallies,  of  late  years  fre- 
quently holding  joint  debates.2  Far  too  often,  unfor- 
tunately, they  also  truckle  to  the  personal  ambition  of 
individual  voters  by  flattery  and  the  promise  of  favors, 
a  course  that  deters  some  of  the  best  men  from  political 
life.3  The  wire-pullers,  indeed,  are  not  over-anxious  for 
really  strong  characters,  because  they  prefer  men  whom 
they  can  control,  and  use  for  their  own  purposes.4  If 
they  want  anything  they  exert  a  pressure  on  the  deputy, 
who  in  his  turn  brings  a  pressure  to  bear  on  the  min- 
isters; and  hence  it  has  been  a  common  saying  that 
the  electoral  committees  rule  the  deputies,  and  the 
deputies  rule  the  government.5 

It  is  asserted  that,  since  the  re-introduction  of  single 
electoral  districts,  the  power  of  the  committees  has  sen- 
sibly diminished,6  and,  whether  this  be  true  or  not,  it  is 

1  Theodore  Stauton,   supplement  to  the    article  of  Alfred  Naquet, 
p.  473. 

2  Alfred  Naquet,  Ib.     The  newspapers  at  election  time  are  full  of 
accounts  of  these  meetings  for  joint  debate,  called  Reunions  publiques 
contradictoires. 

8  Cf .  Scherer,  La  Democratic  et  la  France,  pp.  24-25,  39.  Direct  bribery 
of  voters,  though  not  unknown,  seems  to  be  rare,  but  the  complaint  that 
elections  have  been  getting  a  good  deal  more  expensive  of  late  years  is 
general.  Naquet,  Ib. ;  Reinach,  pp.  189-90  ;  Simon,  Dieu,  Patrie,  Liberte, 
p.  373  ;  Souviens  toi  du  Deux  Decembre,  p.  91. 

4  Channes,  Nos  Fautes,  pp.  379-81  ;  Laffitte,  p.  69  et  seq. 

6  Channes,  pp.  238-39  ;  and  see  Scherer,  La  Democratic  et  la  France9 
p.  27;  Simon,  Dieu,  Patrie,  Liberte,  p.  378. 

For  this  reason  one  frequently  hears  it  said  that  the  deputies  do  not 
see  the  real  people,  but  only  their  own  political  dependents.  Channes, 
p.  38  ;  Simon,  Souviens  toi  du  Deux  Decembre,  pp.  165-66. 

6  Naquet,  "The  French  Electoral  System,"  North  American  Rev.,  vol. 
155,  p.  466.  But  see  on  the  other  side  the  article  of  Benoist  in  the 
Revue  des  Deux  Mondes,  July  1,  1895,  pp.  17-19. 


112  FRANCE. 

certainly  easy  to  exaggerate  their  influence,  for  the  dep- 
The  depu-  uty  must  always  consider  other  people  beside 
thefrcon-  the  wire-pullers.  He  must  try  to  strengthen 
lts*  his  general  popularity  throughout  his  district. 
He  is,  indeed,  expected  to  look  after  the  political  business 
of  his  constituents,  and  is  a  regular  channel  for  the  pre- 
sentation of  grievances  and  the  distribution  of  favors ; 
one  of  the  complaints  most  commonly  heard  in  France 
being  that  the  deputies  represent  local  and  personal  in- 
terests rather  than  national  ones.  But  even  this  does  not 
end  his  responsibilities.  The  traditions  of  centralization 
which  make  all  France  look  to  Paris  for  guidance,  and 
the  habit  of  paternal  government  that  makes  men  turn 
to  the  state  for  aid,  have  caused  many  people  to  regard 
the  deputy  as  a  kind  of  universal  business  agent  for 
his  district  at  the  capital,  and  burden  him  with  all  sorts 
of  private  matters  in  addition  to  his  heavy  public  duties. 
Sometimes  this  is  carried  to  an  extent  that  is  positively 
ludicrous.  Some  years  ago  a  couple  of  deputies  gave 
an  account  at  a  public  dinner  of  the  letters  they  had 
received  from  their  districts.  Some  constituents  wanted 
their  representative  to  go  shopping  for  them ;  others 
asked  him  to  consult  a  physician  in  their  behalf ;  and 
more  than  one  begged  him  to  procure  a  wet  nurse, 
hearing  that  this  could  be  done  better  in  Paris  than  in 
the  provinces.1  Is  it  to  be  wondered  that  the  French 
deputy  should  bend  under  the  weight  of  his  responsi- 
bilities? 

If  I  seem  to  have  drawn  a  somewhat  dark  picture  of 
the  position  of  the  deputy,  I  do  not  want  to  be  under- 

1  This  is  quoted  by  Scherer  in  La  Democratic  et  la  France,  pp.  34-35. 


THE  DEPUTY  A  CHANNEL  FOR  PRIVATE  FAVORS.    113 

stood  as  implying  that  all  deputies  are  alike ;  that  many 
of  them  are  not  men  of  high  character,  who  will  not 
yield  to  the  temptation  and  pressure  with  which  they 
are  surrounded.  My  object  is  simply  to  describe  a 
tendency ;  to  point  out  a  defect  in  the  French  political 
system,  and  to  show  clearly  the  characteristic  evils 
which  that  defect  cannot  fail  to  develop.  The  famous 
scandals  about  the  bribery  of  deputies  in  connection 
with  the  Panama  Canal,  with  which  the  newspapers 
were  filled  for  three  months,  have  thrown  a  dismal 
light  over  public  life  in  France,  and,  although  at  first 
the  credulous  Parisians  no  doubt  exaggerated  the  ex- 
tent of  the  corruption,  still  there  was  fire  enough  under 
the  smoke  to  show  what  baleful  influences  haunt  the 
corridors  of  the  Palais  Bourbon. 

Before  closing,  let  us  consider  for  a  moment  the 
political  prospects  of  the  country.  The  gen- 
erous enthusiasm  that  greeted  the  Republic  at  the  Repub- 
the  outset  has  faded  away,  and  even  its  most 
ardent  advocates  have  found  to  their  sorrow  that  it  has 
not  brought  the  promised  millennium.  Such  a  feeling  of 
disappointment  is  not  surprising.  On  the  contrary,  it 
might  have  been  surely  predicted,  for  in  every  form  of 
government  that  has  existed  in  France  since  the  Revo- 
lution the  period  of  enthusiasm  has  been  followed  by 
one  of  disenchantment,  and  to  this  latter  stage  the  Re- 
public has  come  in  the  natural  course  of  events.  Now 
this  period  may  well  be  looked  upon  as  crucial,  because 
as  yet  no  form  of  government  in  France  has  been  able 
to  live  through  it.  After  a  political  system  has  lasted 
about  half  a  generation,  the  country  has  always  become 


114  FRANCE. 

disgusted  with  it,  torn  it  down,  and  set  up  another, — a 
course  that  has  made  any  steady  progress  in  public  life 
impossible.  The  effect  has,  in  fact,  been  very  much 
like  that  which  would  be  produced  by  a  man  who 
should  constantly  root  out  his  crops  before  they  came 
to  maturity,  and  sow  his  field  with  new  and  different 
seed. 

The  reason  for  such  a  state  of  things  is  not  hard  to 
Hitherto  no  ^n^'  Since  the  Kevolution  every  form  of 
pachas  government  in  France  has  been  the  expres- 
£Sh<ratda  si°n  or  outward  sign  of  a  definite  set  of 
lon'  political  opinions.  So  close,  indeed,  has  the 
connection  been  between  the  two,  that  it  has  been 
impossible  for  men  to  conceive  of  one  without  the 
other,  and  therefore  a  fundamental  change  of  opinion 
has  always  involved  a  change  in  the  form  of  govern- 
ment. Any  one  who  studies  the  history  of  the  nation 
will  see  that  there  has  never  been  a  change  of  jparty 
^ithpjjj^reyiilutton.  TEere  has  often  been  a  shifting 
of  control  from  one  group  to  another  of  a  slightly  dif- 
ferent coloring,  but  the  real  party  in  opposition  has 
never  come  to  power  without  an  overturn  of  the  whole 
political  system.  Under  the  Kestoration,  for  example, 
the  ministers  were  sometimes  Moderate  and  sometimes 
extremely  Reactionary,  but  were  never  taken  from 
the  ranks  of  the  liberal  opposition.  Again,  during  the 
Monarchy  of  July  the  different  groups  of  Liberals  dis- 
puted fiercely  for  the  mastery,  but  neither  the  Radicals 
nor  the  Reactionaries  had  the  slightest  chance  of  com- 
ing to  power.  If  space  permitted,  this  truth  might  be 
illustrated  by  taking  up  in  succession  each  of  the  gov- 


PROSPECTS  OF  THE  REPUBLIC.  115 

ernments  that  have  flourished  since  the  Revolution,  but 
perhaps  it  is  enough  to  refer  to  the  only  apparent 
exception  that  has  occurred.  While  General  MacMahon 
was  President  of  the  Third  Republic,  power  was  cer- 
tainly transferred  from  the  Reactionaries  to  the  Repub- 
licans, but  the  circumstances  of  this  case  were  very 
peculiar.  The  Republic  had  hardly  got  into  working 
order,  and  the  struggle  of  the  Reactionaries  may  be 
looked  upon  as  a  final  effort  to  prevent  it  from  becom- 
ing firmly  established.  The  French  themselves  have 
always  considered  the  occurrence,  not  as  a  normal 
change  of  party,  but  as  the  frustration  of  an  attempt  at 
a  coup  d'etat  or  counter-revolution.  This  case,  there- 
fore, from  the  fact  that  it  has  been  generally  regarded 
as  exceptional,  may  fairly  be  treated  as  the  kind  of 
exception  that  tends  to  prove  the  rule.  A  revolution 
in  France  corresponds  in  many  ways  to  a  change  of 
party  in  other  countries,  but  with  this  grave  disadvan- 
tage, that  the  new  administration,  instead  of  reforming 
the  political  institutions,  destroys  them  altogether.  Of 
course  such  a  method  puts  gradual  improvement  out 
of  the  question,  and  before  the  nation  can  perfect  her 
government  she  must  learn  that  the  remedy  for  defects 
is  to  be  sought  through  the  reform,  not  the  overthrow, 
of  the  existing  system. 

One  would  suppose  that  under  the  Republic  no  such 
difficulty  could  arise,  because  a  republic  means  the  rule 
of  the  majority,  and  the  majority~is  sure  to  be  some^ 
times^on  one  side  and  sometimes  on  the  other.  But 
this  is  not  the  view  of  most  French  Republicans,  and 
especially  of  the  Radicals.  These  men,  recognizing 


116  FRANCE. 

that,  on  account  of  a  want  of  training  in  self-govern- 
ment, the  people  can  be  cajoled,  or  frightened,  or 
charmed,  or  tricked  into  the  expression  of  the  most  con- 
tradictory opinions,  refuse  to  admit  that  any  vote  not  in 
harmony  with  their  own  ideas  can  be  a  fair  test  of  the 
popular  will,  and  assume  for  themselves  the  exclusive 
privilege  of  declaring  what  the  people  really  want.  As 
M.  Edmond  Scherer  has  cleverly  said :  "  Let  us  add 
that  the  God  (universal  suffrage)  has  his  priests,  whose 
authority  has  never  been  quite  clear,  but  who  know 
his  wishes,  speak  in  his  name,  and,  if  resistance  occurs, 
confound  it  by  an  appeal  to  the  oracle  whose  secrets 
are  confided  to  them  alone."  1  The  Radicals,  therefore, 
cannot  admit  a  possibility  that  the  true  majority  can  be 
against  them,  and  nothing  irritates  them  so  much  as  to 
hear  the  other  parties  claim  that  the  people  are  on 
their  own  side.  It  has  been  said  that  the  Republic  will 
not  be  safe  until  it  has  been  governed  by  the  Conserva- 
tives,2 and  the  remark  has  a  special  significance  in  this 
connection  :  first,  because,  until  the  Conservatives  come 
to  power,  it  will  not  be  clear  whether  the  Republic  has 
enough  strength  and  elasticity  to  stand  a  change  of 
party  without  breaking  down  ;  and  second,  because  the 
right  of  the  majority  to  rule,  which  is  the  ultimate 
basis  of  the  consensus  on  which  the  Republic  must 
rest,  will  not  be  surely  established  until  each  party  has 
submitted  peaceably  to  a  popular  verdict  in  favor  of  the 
other. 

1  La  Democratic  et  la  France,  p.  18. 

2  "  La  Rdpublique  et  les  Conservateurs,"  Revue  des  Deux  Mondes,  March 
1,  1890,  pp.  120-21.     This  means,  of  course,  the  conservative  elements 
among  the  people,  and  not  merely  the  conservative  Republicans. 


PROSPECTS  OF  THE  REPUBLIC. 


117 


Probable 
changes  in 
French  in- 
stitutions. 


If  the  Republic  proves  lasting,  the  form  of  its  institu- 
tions will  no  doubt  be  gradually  modified,  but, 
whatever  changes   take  plac 

:  the  resp«QDsibility  of  the  ministers  to 
parliament  must  be  retained.  In  a  country  like  the 
United  States,  where  power  is  split  up  by  the  federal 
system,  where  the  authority  in  the  hands  of  the 
executive  is  comparatively  small,  and,  above  all,  where 
the  belief  in  popular  government  and  the  attachment 
to  individual  liberty  and  the  principles  of  the  common 
law  are  ingrained  in  the  race,  there  is  no  danger  in 
intrusting  the  administration  to  a  President  who  is 
independent  of  the  legislature.  But  this  would  not  be 
safe  in  France,  because,  owing  to  the  centralization  of 
the  government  and  the  immense  power  vested  in  the 
executive,  such  a  President  would  be  almost  a  dictator 
during  his  term  of  office ;  and  the  temptation  to  pro- 
long his  authority,  from  public  no  less  than  from  selfish 
motives,  would  be  tremendous.  Nor,  in  view  of  the 
tendency  of  the  mercantile  classes,  and  even  of  the 
peasants,  to  crave  a  strong  ruler,  would  it  be  difficult 
for  him  to  do  so,  as  Louis  Napoleon  proved  long  agq^/ 
A  President  is  able  to  overthrow  a  popular  assembly 
because  the  French  have  long  been  accustomed  to 
personal  government,  and  because  an  assembly  is  in- 
capable of  maintaining  a  stable  majority ;  because,  in 
short,  the  French  know  how  to  work  personal  but  not 
representative  government :  and  the  danger  will  con- 
tinue until  parliamentary  institutions  are  perfected,  and 
their  traditions  by  long  habit  have  become  firmly 
rooted.  The  French  President  cannot,  therefore,  be 


118  FRANCE. 

independent,  and  the  only  feasible  alternative  is  to 
surround  him  with  ministers  who  are  responsible  to  the 
Chamber  of  Deputies.  But  if  the  parliamentary  system 
must  be  retained,  it  is  important  to  remove  the  defects 
that  it  shows  to-day,  and  especially  is  it  necessary,  on 
the  one  hand,  to  diminish  the  autocratic  power  of  the 
administration,  which  offers  a  well-nigh  irresistible 
temptation  to  both  minister  and  deputy ;  and,  on  the 
other  hand,  to  give  the  cabinet  more  stability,  more 
dignity,  and  more  authority ;  to  free  it  from  the  yoke 
of  the  groups  in  the  Chamber,  and  from  dependence  on 
local  interest  and  personal  appetite  ;  to  relieve  it  from 
the  domination  of  irresponsible  committees,  and  from 
the  danger  of  defeat  by  haphazard  majorities ;  to  enable 
it  to  exert  over  its  followers  the  discipline  that  is  required 
for  the  formation  of  great,  compact  parties ;  to  make  it, 
in  short,  the  real  head  of  a  majority  in  parliament  and 
in  the  nation. 

VOL.  I. 


ITALY 


CHAPTER 
ITALY:  INSTITUTIONS. 

THE  perfection  of  its  organization  and  the  excel- 
Causesthat  lence  °^  its  ^aws  preserved  the  life  of  Home 
«nioneofthe  l°ng  a^er  its  vital  f°rce  nad  become  ex- 
hausted ;  and  when  the  Teutonic  tribes  had 
once  broken  through  the  shell  of  the  western  empire, 
they  overran  it  almost  without  resistance.  Europe 
sank  into  a  state  of  barbarism,  from  which  she  re- 
covered to  find  her  political  condition  completely 
changed.  Slowly,  during  the  Middle  Ages,  the  nations 
were  forming,  until  at  last  Europe  became  divided 
into  separate  and  permanent  states,  each  with  an  inde- 
pendent government  of  its  own.  In  two  countries, 
however,  —  Italy  and  Germany,  —  this  process  of  de- 
velopment was  delayed  by  the  existence  of  the  Holy 
Roman  Empire,  which  claimed  an  authority  far  greater 
than  it  was  able  to  wield,  and,  while  too  weak  to  consoli- 
date its  vast  dominions  into  a  single  state,  was  strong 
enough  to  hinder  them  from  acquiring  distinct  and 
national  governments.  The  condition  of  Italy  was 
further  complicated  by  the  presence  of  the  Pope ;  for 
although  the  Papacy  was  an  immense  civilizing  force  in 
mediaeval  Europe,  yet  the  constant  quarrels  of  the  Pope 
and  the  Emperor,  and  the  existence  of  the  States  of 
the  Church,  tended  greatly  to  prevent  the  development 


FORMATION  OF  THE  KINGDOM.  121 

of  Italy  as  a  nation.  The  country  was  broken  into 
a  multitude  of  jarring  elements,  and  even  Dante  saw 
no  hope  of  union  and  order  save  under  the  sway  of 
a  German  emperor.  The  north  of  Italy  was  full  of 
flourishing  cities  enriched  by  commerce  and  manufac- 
tures and  resplendent  with  art,  but  constantly  fighting 
with  each  other,  and,  except  in  the  case  of  Venice, 
a  prey  to  internal  feuds  that  brought  them  at  last 
under  the  control  of  autocratic  rulers.1  The  south,  on  n> 
the  other  hand,  fell  under  the  dominion  of  a  series 
of  foreign  monarchs,  who  were  often  despotic,  and,  by 
making  the  government  seem  an  enemy  of  the  gov- 
erned, destroyed  in  great  measure  the  legal  and  social  j 
organization  of  the  people.  For  thirteen  centuries  — 
from  the  reign  of  Theodoric  the  Ostrogoth  to  the 
time  of  Napoleon  —  the  greater  part  of  Italy  was  never 
united  under  a  single  head,  and  in  both  of  these 
cases  the  country  was  ruled  by  foreigners.  Yet  short- 
lived and  unnatural  as  the  Napoleonic  Kingdom  of  Italy 
was,  it  had  no  small  effect  in  kindling  that  longing  for 
freedom  and  union  which  was  destined  to  be  fulfilled 
after  many  disappointments. 

By  the  treaty  of  Vienna,  in  1815,  Italy  was  again 
carved  into  a  number  of  principalities,  most 
of  them  under  the  direct  influence  of  Austria,  takes'the 
Most  of  them,  but  not  all,  for  in  the  north-  in  the 
western  corner  of  the  peninsula,  between  the  Italian  inde- 
mountains  and  the  sea,  lay  Piedmont,  ruled  by 
a  prince  of  the  house  of  Savoy,  with  the  title  of  King 

1  Genoa  was  torn  with  factions,  and  was  at  times,  though  not  perma- 
nently, subject  to  Milan  or  to  France. 


122  ITALY. 

of  Sardinia.      During  the  great  popular   upheaval  of 

1848,  Charles  Albert,  a  king  of  this  line,  granted  to 

his  people  a  charter  called  the  Statute,  and 

in  that  year  and  the  following  he  waged  war 

with  Austria  for  the  liberation  of  Italy.     He  was  badly 

beaten,  but  succeeded  in  attracting  the  attention  of  all 

Italians,   who   now   began   to   look   on  the   King   of 

Sardinia  as  the  possible  saviour  of  the  country.     After 

his   second   defeat,   at   Novara,   on   March  23,  1849, 

Charles  Albert  abdicated  in  favor  of  his  son, 

victor          Victor  Emmanuel,  who  refused  to  repeal  the 


Statuto  in  spite  of  the  oners  and  the  threats 
of  Austria,  —  an  act  that  won  for  him  the  confi- 
dence of  Italy  and  the  title  "  II  Re  Galantuomo,"  the 
King  Honest  Man.  The  reliance,  indeed,  which  Victor 
Emmanuel  inspired  was  a  great  factor  in  the  making  of 
Italy;  and  to  this  is  due  in  large  part  the  readiness 
with  which  the  Italian  revolutionists  accepted  the  mon- 
archy, although  contrary  to  their  republican  sentiments. 
In  fact,  the  chivalrous  nature  of  the  principal 
actors  makes  the  struggle  for  Italian  unity 


more  dramatic  than  any  other  event  in  modern 
times.1  The  chief  characters  are  heroic,  and  stand  out 
with  a  vividness  that  impresses  the  imagination,  and 
gives  to  the  whole  history  the  charm  of  a  romance. 
Victor  Emmanuel  is  the  model  constitutional  king; 
Cavour,  the  ideal  of  a  cool,  far-sighted  statesman  ; 
Garibaldi,  the  perfect  chieftain  in  irregular  war,  dash- 
ing, but  rash  and  hot-headed  ;  Mazzini,  the  typical 

1  Professor  Dicey  speaks  of  this,   and   draws  a  comparison  between 
Italian  and  Swiss  politics,  in  a  letter  to  The  Nation  of  Nov.  18,  1886. 


FORMATION  OF  THE  KINGDOM.  123 

conspirator,  ardent  and  fanatical  ;  —  all  of  them  full  of 
generosity  and  devotion.  The  enthusiasm  which  their 
characters  inspired  went  far  to  soften  the  difficulties  in 
their  path,  and  to  help  the  people  to  bear  the  sacrifices 
entailed  by  the  national  regeneration.  Over  against 
these  men  stands  Pius  IX.,  who  began  his  career  as  a 
reformer,  but,  terrified  by  the  march  of  the  revolution, 
became  at  last  the  bigoted  champion  of  reaction.  The 
purity  of  his  character  and  the  subtle  charm  of  his 
manner  fitted  him  to  play  the  part  of  the  innocent 
victim  in  the  great  drama. 

When  Cavour  first  became  prime  minister  of  Victor 
Emmanuel  in  1852,  his  plan  was  a  confeder- 


ation  of  the  Italian  States  under  the  Pope  a^  con- 
as  nominal  head,  but  practically  under  the  f 
lead  of  the  King  of  Sardinia.  Now,  in  order  to  make  - 
this  plan  a  success,  it  was  necessary  to  exclude  the 
powerful  and  reactionary  House  of  Habsburg  from  all 
influence  in  the  peninsula,  and  with  this  object  he 
induced  Napoleon  III.  to  declare  war  against  Austria 
in  1859  ;  but  when  the  Emperor  brought  the  war  to  a 
sudden  end  by  a  peace  that  required  the  cession  of 
Lombardy  alone,  and  left  Venice  still  in  the  hands  of 
the  enemy,  Cavour  saw  that  so  long  as  Austria  retained 
a  foothold  in  Italy,  many  of  the  principalities  would 
remain  subject  to  her  control.  He  therefore  changed 
his  scheme,  and  aimed  at  a  complete  union  changed  to 
of  Italy  under  the  House  of  Savoy.1  The  ^Sfora 
whole  country  was  ready  to  follow  the  lead  kingdom- 

1  Jacini,  /  Conservatori  e  V  Evoluzione  dei  Partiti  Politici  in  Italia,  p, 


124  ITALY. 

of  Victor  Emmanuel,  and,  except  for  Venice  and  Home, 
which  were  guarded  by  foreign  troops,  the  march  of 
events  was  rapid.  The  people  of  the  northern  States 
had  already  risen  and  expelled  their  rulers,  and  early 
in  1860  they  declared  for  a  union  with  Sardinia. 
Later  in  the  same  year  Garibaldi  landed  at  Marsala 
with  a  thousand  men,  roused  the  country,  and  quickly 
overran  Sicily  and  Naples,  which  decided  by  popular 
vote  to  join  the  new  kingdom,  —  a  step  that  was  soon 
followed  by  Umbria  and  the  Marches.  The  rest  of 
Italy  was  won  more  slowly.  Venice  was  annexed  in 
1866,  as  a  result  of  the  war  fought  against  Austria 
by  Prussia  and  Italy ;  and  Kome  was  not  added  until 
1870,  after  the  withdrawal  of  the  French  garrison  and 
the  fall  of  Napoleon  III.,  who  had  sent  it  there  to 
protect  the  Pope. 

It  is  curious  that  Sardinia  expanded  into  the  King- 
Government  dom  of  Italy  without  any  alteration  of  its 
domofiSfy.  fundamental  laws,  for  the  Statute,  originally 
The  statute,  granted  by  Charles  Albert  in  1848,  remains 
the  constitution  of  the  nation  to-day.  It  has  never 
I  been  formally  amended,  and  contains,  indeed,  no  pro- 
l^vision  for  amendment.  At  first  it  was  thought  that 
any  changes  ought  to  be  made  by  a  constituent 
assembly,  and  in  1848  a  law  was  passed  to  call  one, 
although,  on  account  of  the  disastrous  results  of  the 
war,  it  never  met.  By  degrees,  however,  an  -opinion 
gained  ground  that  the  political  institutions  of  Italy, 
like  those  of  England,  could  be  modified  by  the  ordi- 
nary process  of  legislation.  This  has  actually  been 
done,  to  a  greater  or  less  extent,  on  several  occasions ; 


THE  STATUTO.  125 

and  now  both  jurists  and  statesmen  are  agreed  that 
unlimited  sovereign  power  resides  in  the  King  and 
Parliament.1  The  Statuto  contains  a  bill  of  rights; 
but,  except  for  the  provision  forbidding  censorship  of 
the  press,  and  perhaps  that  protecting/  the  right  of 
holding  meetings,2  it  was  not  designed  to  guard  against 
oppression  by  the  legislature,  but  only  by  the  executive. 
The  Statuto  is,  in  fact,  mainly  occupied  with  the^ 
organization  of  the  powers  of  state,  and  has  gradually 
become  overlaid  with  customs,  which  are  now  so  strong 
that  many  Italian  jurists  consider  custom  itself  a  source 
of  public  law.  They  claim,  for  example,  that  the  habit 
of  selecting  ministers  who  can  command  a  majority  in 
Parliament  has  become  binding  as  part  of  the  law  of  j 
the  land.3 

Let  us  consider  the  powers  of  state  in  turn,  begin- 
ning with  the  King  and  his  ministers,  then  passing 
to  the  Parliament,  then  to  the  local  government  and 
the  judicial  system,  and  finally  to  the  position  of  the 
Catholic  church. 

1  Brusa,  Italien,  in  Marquardsen's  Handbuch,  pp.  12-16,  181-82;  Ruiz, 
1  The  Amendments  to  the  Italian  Constitution,"  Ann.  Amer.  Acad.  of  Pol. 

Sci.,  Sept.,  1895.  It  may  be  noted  that  the  various  contributions  to  Mar- 
(fuardsen's  work  are  of  very  different  value,  and  that  Brusa's  is  one  of 
the  best.  He  remarks  (p.  15)  that,  before  changing  any  constitutional 
provision,  it  has  been  customary  to  consult  the  people  by  means  of  a  gen- 
eral election,  and  that  it  is  the  universal  opinion  that  Parliament  has  not 
power  to  undo  the  work  of  the  popular  votes  by  which  the  various  prov- 
inces were  annexed  ;  in  other  words,  that  Parliament  cannot  break  up 
the  kingdom.  It  has  been  suggested  that  the  courts  can  consider  the 
constitutionality  of  a  law  which  involves  a  forced  construction  of  the 
Statuto,  but  this  view  has  not  prevailed.  (Brusa,  pp.  182,  note  3, 229-30.) 

2  Arts.  28,  32. 

1  See  Brusa,  p.  19. 


126  ITALY. 

At  the  head  of  the  nation  is  the  King,  whose  crown 
is  declared  hereditary,  according  to  the  prin- 
ciples of  the  Salic  law;  that  is,  it  can  be 
inherited  only  by  and  through  males.1  It  sounds  like 
Power  a  paradox  to  say  that  the  King  is  a  constitu- 
Serebled  tional  sovereign,  but  that  the  constitution 
does  not  give  a  correct  idea  of  his  real  func- 
tions, and  yet  this  is  true.  By  the  Statuto,  for  example, 
his  sanction  is  necessary  to  the  validity  of  laws  passed 
by  the  Parliament,2  but  in  point  of  fact  he  never 
refuses  it.3  Again,  the  constitution  provides  that 
treaties  which  impose  a  burden  on  the  finances  or 
change  the  territory  shall  require  the  assent  of  the 
Chambers,4  leaving  the  Crown  free  to  conclude  others 
as  it  thinks  best ;  but  in  practice  all  treaties,  except 
military  conventions  and  alliances,  are  submitted  to 
Parliament  for  approval.5  The  King  is  further  given 
power  to  declare  war,  to  appoint  all  officers,  to  make 
decrees  and  ordinances,  to  create  Senators,  to  dissolve 
the  Chamber  of  Deputies,  and  so  forth ; 6  but  the 
Statuto  also  provides  that  no  act  of  the  government 
shall  be  valid  unless  countersigned  by  a  minister ;  and 
in  fact  all  the  powers  of  the  King  are  exercised  in  his 
name  by  the  ministers,  who  are  responsible  to  the 
popular  House.7  He  is,  indeed,  seldom  present  at 

1  Statuto,  Art.  2. 

2  Statuto,  Art,  7. 

8  Brusa,  pp.  105, 153  ;  cf.  Dupriez,  vol.  i.  pp.  281,  292-97. 

4  Statuto,  Art.  5. 

5  Brusa,  p.  106. 

6  Statuto,  Arts.  5-9. 

7  Statuto,  Art.  67  ;  and  see  Brusa,  p.  105. 


THE  KING  AND  HIS  MINISTERS.  127 

cabinet  meetings,  and  has  little  or  no  direct  influence 
over  current  domestic  politics,1  although  it  is  said  that 
his  personal  opinion  has  a  good  deal  of  weight  on 
the  relations  with  foreign  states.2  When,  however,  a 
cabinet  crisis  occurs  and  the  ministry  resigns,  the  King 
has  a  great  deal  of  latitude  in  the  appointment  of  its 
successor;  for  the  Chamber  is  not  divided  into  two 
parties,  one  of  which  naturally  comes  into  power  when 
the  other  goes  out,  but,  as  in  France,  it  is  split  up  into 
a  number  of  small  groups,  so  that  every  ministry  is 
based  upon  a  coalition.  The  King  can,  therefore,  send 
for  almost  any  one  he  pleases  and  allow  him  to  attempt 
to  form  a  cabinet^  It  often  happens,  moreover,  that 
the  man  selected  feels  that  he  cannot  get  the  support 
of  a  majority  in  the  existing  Chamber,  but,  hoping  for 
a  favorable  result  from  a  new  election,  is  willing  to 
undertake  to  form  a  cabinet  if  allowed  to  dissolve 
Parliament.  In  such  cases  the  King  exercises  his  own 
discretion,  and  grants  permission  or  not  as  he  thinks 
best ;  for,  contrary  to  the  habit  in  France,  dissolutions 
in  Italy  are  by  no  means  rare.  Thus  the  Italian  King, 
although  strictly  a  constitutional  monarch  tied  up  in  a 
parh'amentary  system,  is  not  quite  so  powerless  as  the 
French  President  or  the  English  King. 

In  the  selection  of  his  ministers  the  King  is  not 
limited  by  law  to  members  of  Parliament,  but,   The  minia_ 
if  a  man  is  appointed  who  is  not  a  member  of  ters* 
either  House,  he  is  obliged  by  custom  to  become  a  can- 

1  Brusa,  p.  108.   Dupriez,  vol.  i.  p.  289,  says  that  he  presides  only  when 
peculiarly  important  matters  are  under  discussion. 

2  Dupriez,  vol.  i.  p.  296.     This  is  a  common  opinion. 


128  ITALY. 

didate  for  the  next  vacant  seat  in  the  Chamber  of 
Deputies,  unless  he  is  created  a  Senator.1  As  in  other 
parliamentary  governments  on  the  Continent,  however, 
the  ministers  and  their  under-secretaries  have  a  right  to 
be  present  and  speak  in  either  Chamber,  although  they 
can  vote  only  in  the  one  of  which  they  happen  to  be 
members.2  The  work  of  the  Parliament  is,  indeed, 
chiefly  directed  by  them ;  for,  while  individual  members 
have  a  right  to  introduce  bills,  the  power  is  used  only 
for  matters  of  small  importance.3  As  a  rule,  each 
minister  has  charge  of  a  department  of  the  administra- 
tion; but  it  is  allowable,  and  was  at  one  time  not 
uncommon,  to  appoint  additional  ministers  without  port- 
folios, whose  duties  consisted  solely  in  helping  to  shape 
the  policy  of  the  government,  and  defending  it  in  the 
Chambers.4 

The  Italian  Parliament  has  two  branches, — the  Senate 
and  the  Chamber  of  Deputies.  The  Senate  is 
composed  of  the  princes  of  the  royal  family,5 

1  Brusa,  p.  108;   and  the  same  thing  is  true  of  the  parliamentary 
under-secretaries.    Id.,  p.  196. 

2  Statute,  Art.  66  ;  Law  of  Feb.  12,  1888,  Art.  2. 

8  Brusa,  p.  172.  Dupriez  (vol.  i.  p.  308)  says  that  the  ministers  in 
Italy  have  not  so  complete  a  monopoly  of  initiative  as  in  other  countries, 
and  that  private  members  often  propose  measures  with  success.  But  in 
saying  this  he  must  not  be  understood  to  deny  that  the  laws  enacted  as 
a  result  of  private  initiative  are  unimportant  compared  with  the  govern- 
ment measures,  both  as  regards  number  and  character. 

4  Brusa,  p.  197.  See,  also,  the  lists  of  the  different  ministries  published 
in  the  Manual  of  the  Deputies.  This  manual,  by  the  way,  is  a  most  valua- 
ble production,  for  it  contains  the  text  of  many  important  laws  and  a  large 
amount  of  interesting  information.  For  the  organization  and  functions  of 
the  various  departments,  see  Brusa,  p.  200  et  seq. 

6  Statuto,  Art.  34. 


THE   SENATE.  129 

and  of  members  appointed  by  the  King  for  life  from 
certain  categories  of  persons  denned  by  the  Itscompo_ 
Statute.1  These  are :  bishops ; 2  sundry  high  sition 
officials,  civil,  military,  and  judicial ; 8  deputies  who 
have  served  three  terms,  or  six  years ; 4  men  who  have 
been  for  seven  years  members  of  the  Royal  Academy  of 
Science ;  men  who  pay  over  three  thousand  lire  (about 
six  hundred  dollars)  in  taxes  ;5  and  men  deserving  ex- 
ceptional honor  for  service  to  the  state.  Owing  to 
the  extreme  severity  of  the  Senate  in  recognizing  such 
desert,  there  are  at  present  only  two  members  from 
this  last  class;  for  the  Senate  itself  has  the  strange 
privilege  of  deciding  whether  a  person  selected  by  the 
King  belongs  properly  to  one  of  these  classes,  and  is 
qualified  to  be  a  Senator.6  Except  for  money 
bills,  which  must  be  presented  first  to  the 
Chamber  of  Deputies,  the  legislative  powers  of  the  two 
Houses  are  the  same,  but  the  Senate  has  also  judicial 
functions.  It  can  sit  as  a  court  to  try  ministers  im- 
peached by  the  Chamber  of  Deputies ;  to  try  cases  of 
high  treason  and  attempts  on  the  safety  of  the  state ; 7 

1  Statute,  Art.  33.     All  the  appointed  members  must  be  forty  years 
old. 

2  Since  the  quarrel  with  the  Pope  in  1870  this  class  has  not  been  avail- 
able.    Brusa,  p.  119. 

8  Except  in  the  case  of  the  highest  officials,  persons  of  this  class  can  be 
appointed  only  after  a  period  of  service  which  varies  from  three  to  seven 
years,  according  to  the  office  they  hold.  In  1910  there  were  ninety-nine 
Senators  from  this  class. 

4  Out  of  a  total  of  about  three  hundred  and  eighty-three,  there  were  in 
1910  about  one  hundred  and  forty-seven  Senators  from  this  class. 

5  There  were  seventy-one  Senators  from  this  class  also. 

•  Brusa,  p.  119  ;  and  see  the  Statuto,  Art.  60. 

*  Statuto,  Art.  36. 


130  ITALY. 

and  to  try  its  own  members,  —  the  Italians,  curiously 
enough,  having  copied  in  their  Senate  the  antiquated 
privilege  which  entitles  the  English  Peers  to  be  tried 
for  crime  only  by  members  of  their  own  body.1  As  a 
matter  of  fact,  the  Senate  has  very  little  real  power,  and 
is  obliged  to  yield  to  the  will  of  the  Lower  House.2  In 
1878-80  it  did,  indeed,  refuse  to  abolish  the  unpopular 
grist-tax  for  more  than  a  year,  but  gave  way  before  a 
newly  elected  Chamber  of  Deputies.3  It  would  proba- 
bly not  venture  even  so  far  to-day,  for  the  number  of 
Senators  is  unlimited,  and  on  several  occasions  a  large 
batch  of  members  has  been  created  in  order  to  change 
the  party  coloring  of  the  body,  —  in  1890  as  many  as 
seventy-five  having  been  appointed  for  this  purpose  at 
one  time.4  As  in  other  countries  where  the  parlia- 
mentary system  exists,  the  cabinet  is  not  responsible  to 
the  Upper  House ;  and  it  is  only  occasionally,  and  as 
it  were  by  accident,  that  a  minister  has  resigned  on 
account  of  an  adverse  vote  in  the  Senate.5 

The  Chamber  of  Deputies  consists  of  five  hundred 

and  eight  members,  elected  on  a  limited  fran- 
berof  Depu-  chise.    By  the  earlier  law,  the  suffrage  was  so 

restricted  that  less  than  two  and  a  half  per 
cent  of  the  population  were  entitled  to  vote ;  but  this 

1  Statute,  Art.  37. 

2  The  changes  made  by  the  Senate  in  bills  have  usually  a  legal  rather 
than  a  political  importance.     Dupriez,  p.  313. 

8  Brusa,  pp.  155-56.  See  Petruccelli  della  Gattina,  Storia  <T  Italia, 
1860-1880,  pp.  420-21,  558-59. 

4  In  1886  forty-one  were  appointed  together,  and  in  1892  forty-two. 
See  the  list  of  Senators  with  their  dates,  in  the  Manual  of  the  Deputies 
for  1892,  p.  806  et  seq.,  and  p.  876. 

*  Brusa,  p.  158,  note  3. 


THE  CHAMBER  OF  DEPUTIES.  131 

was  felt  to  be  too  small  a  proportion,  and  in  1882  it  was 
increased  by  an  act  whose  provisions  are  still  The  {r&a_ 
in  force.1  By  this  statute  a  voter  must  be  able  chise' 
to  read  and  write,  and  must  have  passed  an  examination 
on  the  subjects  comprised  in  the  course  of  compulsory 
education,2  except  that  the  examination  is  not  required 
in  the  case  of  officials,  professional  men,  graduates  of 
colleges,  and  others  who  could,  of  course,  pass  it ;  nor  in 
the  case  of  men  who  have  received  a  medal  for  military 
or  civil  service,  or  who  pay  a  direct  tax  of  nineteen  lire 
and  four  fifths  (about  four  dollars),  or  who  pay  rents  of 
certain  amounts.  The  change  more  than  tripled  the 
quantity  of  voters  at  once;3  and,  although  these  still 
include  only  a  small  part  of  the  citizens,  it  is  to  be 
observed  that  with  the  spread  of  elementary  education 
their  number  will  gradually  increase  until  the  suffrage 
becomes  substantially  universal.4 

At  first  the  members  were  chosen  each  in  a  separate 
district,  but  after  the  times  of  enthusiasm  for  Italian 
unity  were  over,  and  the  generous  impulse  that  had 

1  Brusa,  pp.  122-27.     This  law,  with  its  amendments,  recertified  in 
1895,  may  be  found  in  full  in  the  Manual  of  the  Deputies  for  that  year. 

2  Education  is  compulsory  in  Italy  only  between  the  ages  of  six  and 
nine.     Act  of  July  15,  1877,  Art.  2. 

3  It  raised  the  number  from  627,838  to  2,049,461.    Brusa,  p.  127.    When 
the  law  went  into  effect,  the  voters  were  not  very  unequally  divided  into 
those  who  passed  the  examination,  those  who  paid  the  taxes,  and  the  other 
excepted  classes.     Id.,  p.  126,  notes  1-2. 

4  In  order  to  restrict  the  arbitrary  influence  of  the  government  over 
elections,  and  to  prevent  the  abuses  which  had  been  common  before,  a 
procedure  for  preparing  the  lists  of  voters  and  insuring  the  secrecy  of  the 
ballot  was  established  by  the  same  law  (see  Brusa,  pp.  127-28,  130-32)  ; 
and  in  this  connection  it  is  to  be  noticed  that  soldiers  and  sailors  in  active 
service  (including  subalterns  and  police  officials)  are  not  allowed  to  vote. 
Law  of  March  28,  1895,  Art.  14. 


132  ITALY. 

stirred  the  country  began  to  give  way  before  the  selfish 
f  motives  of  every-day  life,  it  was  found  that  the  deputies 
failed  to  take  broad  views  of  national  questions,  and 
were  largely  absorbed  by  personal  and  local  interests. 
It  was  found,  in  short,  that  they  represented  the  nation 
too  little  and  their  particular  districts  too  much ; l  and  it 
was  hoped  that  by  increasing  the  size  of  the  districts 
they  would  be  freed  from  the  tyranny  of  local  influence, 
and  enabled  to  form  compact  parties  on  national  issues.2 
With  this  object  the  Act  of  1882  distributed  the  five 
hundred  and  eight  seats  among  one  hundred  and  thirty- 
five  districts,  which  elected  from  two  to  five  deputies 
apiece;3  and,  in  order  to  give  some  representation  to 
minorities,  it  was  provided  that  in  those  districts  which 
elected  five  deputies  no  one  should  vote  for  more  than 
four  candidates.4  The  new  system,  called  the  scrutinio 
dl  lista,  did  not  produce  the  results  that  were  expected 
from  it.  On  the  contrary,  in  Italy  as  in  France,  where 
the  same  remedy  was  applied  to  the  same  evil,  the 
organization  and  power  of  the  local  wire-pullers  grew 
with  the  increase  in  the  number  of  deputies  elected  in 
a  district,  while  the  influence  of  the  latter  over  the 
ministers  and  the  provincial  officers  was  greater  than 
J"  ever  before.5  An  Act  of  May  5,  1891,  has  therefore 

1  Brusa,  p.  16. 

2  Minghetti,  /  Partiti  Politid,  p.  18  ;  Petruccelli  della  Gattina,  p.  504. 

8  Three  districts  elected  two  deputies,  sixty-one  elected  three,  thirty- 
six  elected  four,  and  thirty-five  elected  five.  Brusa,  p.  129.  See  Arts. 
44  and  45  of  the  Act  of  1882,  and  the  table  of  districts  annexed  thereto. 

*  Act  of  1882,  Art.  65. 

5  Brusa,  Ib. ;  and  see  Turiello,  Governo  e  Governati  in  Italia,  2d  ed.  j 
Fatti,  p.  326  ;  Proposte,  p.  171. 


THE  CHAMBER  OF  DEPUTIES.  133 

abolished  the  scrutinio  di  lista  and  reestablished  single 
electoral  districts.1 

In  accordance  with  the  general  practice  in  Europe, 
the  deputies  are  not  required  to  be  residents 
of  their  districts,  the  only  important  limita-  turn  of  the 
tions  on  the  choice  of  candidates  being  the 
requirement  of  the  age  of  thirty  years,  and  the  pro- 
vision excluding  priests  who  have  active  duties,  mayors 
and  provincial  counselors  in  their  own  districts,  and  all 
officials  paid  from  the  treasury  of  the  state  with  the  ex- 
ception of  ministers,  under-secretaries,  and  a  few  others.2 
The   deputies  receive  no  pay  for  attendance,  but  are 
given  free  passes  over  the  railroads,3  and  it  is  no  doubt 
partly  for  this  reason  that  the  small  attendance  in  the 
Chamber  has  long  been  a  crying  evil. 

The  Chamber  is  elected  for  five  years,  but  so  far 
its  life  has  always  been  cut  short  by  a  dis- 
solution, and  in  fact  the  average  length  of  of  the 

1    __         Chamber. 

term  has  been  less  than  three  years.       Ihe 

budget  and  the  contingent  of  recruits  are  adjusted  by 

1  This  law  is  printed  in  the  Manual  of  the  Deputies  for  1892,  in  place 
of  Arts.  44,  45,  of  the  Act  of  1882. 

2  Brusa,  pp.  132-34  ;  and  see  Acts  of  Dec.,  1860  (Arts.  97,  98),  July  3, 
1875,  May  13,  1877,  July  5,  1882,  March  28, 1895  (Arts.  81-89).     There 
is  a  curious  provision  that  only  forty  officials  of  all  kinds  (except  minis- 
ters and  under-secretaries),  and  among  them  not  more  than  ten  judges 
and  ten  professors,  can  be  deputies  at  the  same  time,  and  if  more  are 
elected  they  are  reduced  to  that  number  by  lot.     Law  of  March  28, 1895, 
Art.  88.     On  account  of  some  scandals  that  occurred  at  one  time  it  is 
further  provided  that  no  officers  of  companies  subventioned  by  the  state, 
and  no  government  contractors,  can  sit  in  the  Chamber.     Brusa,  p.  134  ; 
law  of  March  28,  1895,  Arts.  84-85. 

8  Brusa,  pp.  159-60. 
4  Id.,  p.  139. 


134  ITALY. 

annual  laws,  and  there  would  naturally  be  a  new  session 
every  year;  but  in  order  not  to  interrupt  the  work  of 
Parliament,  and  especially  the  consideration  of  the 
budget,  which  is  apt  to  be  behindhand,  a  curious  habit 
has  grown  up  of  prolonging  the  sessions,  so  that  three 
recent  Parliaments  have  had  only  a  single  session  apiece, 
one  lasting  two  and  a  half  and  another  three  and  a  half 
years,  all  of  them  unbroken  save  by  occasional  recesses.1 
f  The  Chamber  of  Deputies  elects  its  own  President 
The  Presi-  anc^  °^ner  officers,  and  the  vote  for  President 
used  to  be  an  occasion  for  a  trial  of  party 
strength,  as  in  most  other  legislative  bodies.  Of  late 
r  years,  however,  the  English  habit  has  prevailed  of  re- 
*  electing  the  same  man  without  regard  to  party  affilia- 
,  tions ; 2  and  this  is  the  more  striking  because  the  President 
appoints  the  committees  on  rules  and  contested  elections,3 
which  have,  of  course,  no  little  importance.  The  idea 
that  the  presiding  officer  ought  to  be  strictly  impartial 
is  not  the  only  valuable  suggestion  the  Italians  have 
derived  from  England,  for  they  have  inherited  Cavour's 
admiration  for  British  parliamentary  procedure,  and  in 
general  they  attempt  to  follow  it.  Unfortunately  they 
have  not  done  so  in  all  cases,  for,  as  we  shall  see  when 
we  come  to  consider  the  actual  working  of  the  govern- 

1  Brusa,  p.  139;  and  see  the  list  of  the  sessions  of  the  various  Parlia- 
ments in  the  Manual  of  the  Deputies. 

2  Brusa,  pp.  140  and  156,  note  2.      Biancheri  was  President  of  the 
Chamber  continuously  from  1884  to  1892.     Manual  of  the  Deputies  for 
1892  (pp.  800-802).     In  that  year  he  was  dropped  for  party  reasons, 
and  in  fact  the  practice  of  looking  on  the  President  as  the  representative 
of  a  party  has  unfortunately  revived. 

8  Rules  of  the  Chamber  of  Deputies,  Art.  12. 


THE  ADMINISTRATIVE  SYSTEM.  135 

ment,  the  system  of  committees  and  of  interpellations  or 
questions  has  been  copied  mainly  from  the  French  and_J 
not  the  English  practice. 

Such,  briefly  stated,  are  the  position  of  the  King  and 
the  composition  of  the  Parliament ;  but  although  the 
King  and  his  ministers  on  the  one  hand,  and  the  Par- 
liament on  the  other,  are  the  great  political  forces 
whose  interaction  determines  the  character  of  the 
government,  still  it  is  impossible  to  appreciate  the  re- 
lations between  the  two,  without  some  knowledge  of 
the  method  of  administration,  the  principles  of  local 
government,  and  the  control  exercised  by  the  courts  of 
law,  because  these  matters  have  a  direct  bearing  on  the 
functions  of  the  cabinet,  and  hence  on  the  nature  of 
the  influence  exerted  upon  it  by  the  Parliament. 

The  administration  both  of  national  and  local  affairs, 
and  to  some  extent  the   judicial   system   of  The  admin- 
Italy,  are  modeled  on  those  of  France,  and  j^o/iS^ 
they  present  the  defects  without  aU  the  ad-  thateoffr°m 
vantages  of  the  original.     This  is  particularly  France- 
true   of   the   administrative    system,   where   Italy   has  ~1 
copied  the  centralization,  but  has  been  unable  to  ac- 
quire  the   traditions  which    give   real  solidity  to   the 
body  of  officials.     At  first  sight  it  seems  strange  that 
Cavour  and  his  successors,  with  their  admiration  for 
English  institutions,  should  have  turned  to  the  French 
bureaucracy  as   a   pattern ;    but  there  were  Reasona  for 
several  reasons  for  their  course.     In  the  first  thiSt 
place  the  Napoleonic  rule  had  already  made  the  Italians 
familiar  with  the  French  form  of  administration.     A 
far  stronger  motive  came  from  the  fact  that  after  Cavour 

VOL.  L 


136  ITALY. 

gave  up  the  idea  of  a  confederation,  and  strove  to 
create  a  united  kingdom  of  Italy,  it  became  important, 
in  view  of  the  possible  interference  of  foreign  powers, 
to  consolidate  the  different  provinces  as  completely  and 
rapidly  as  possible.  The  Italian  statesmen  tried,  there- 
fore, to  make  the  people  homogeneous ;  to  remove  as 
far  as  possible  all  local  differences ;  and  to  destroy  all 
possibility  of  local  opposition.1  The  country,  more- 
over, was  very  backward,  and  a  great  work  of  regen- 
eration had  to  be  undertaken,  especially  in  the  south, 
where  society  was  badly  disintegrated  and  brigandage 
was  rife.  To  accomplish  this  a  highly  centralized  and 
autocratic  system,  in  which  the  government  could  make 
itself  quickly  and  decisively  felt,  was  thought  essen- 
tial ; 2  and  it  was  believed,  not  without  reason,  that 
until  the  union  was  accomplished,  and  order  had  been 
established  in  Naples  and  Sicily,  it  was  impossible  to 
introduce  general  local  self-government  or  universal 
liberty.  The  old  territorial  divisions  were  therefore 
swept  away,  and  replaced  by  artificial  districts  devoid, 
of  course,  of  real  local  life.  A  centralized  form  of 
administration  was  set  up,  and  the  government  was 
given  a  highly  arbitrary  power  to  interfere  with  the 
freedom  of  the  individual.  Such  a  system  might  have 
worked  very  well  in  the  hands  of  a  wise  dictator,  but, 
as  some  of  the  Italian  writers  have  themselves  remarked, 
it  was  so  entirely  inconsistent  with  the  parliamentary 
form  of  government  that  one  of  them  was  sure  to  spoil 

1  See  Brusa,  pp.  23,  337  ;  Jacini,  I  Conservatori,    p.  55  et  seq.t  Due 
Anni  di  Politico  Italiana,  pp.  93-94. 

2  See  Brusa,  pp.  253-54. 


THE  ADMINISTRATIVE  SYSTEM.  137 

the  other,  and  experience  has  shown  that  both  of  them 
have  suffered  grievously  from  the  combination.1 

There  is  a  marked  contradiction  in  Italy  between 
the  theory  and  practice  of  government;  for  Contrast  in 
there  is  a  strong  ambition   to  be  abreast  of  J^Jen56 
the  times  and  a  general  belief  in  the  prin-  j£lX*"f 
ciple  of  personal  liberty ;  but  the  actual  con-  gov 
dition  of  the  nation  has  made  it  impossible  to  live  up 
to   these  standards.     A  striking  example  of  the  con- 
trast between  aspirations  and  results  is  furnished  by 
the  state  of  the  criminal  law,  for  capital  punishment 
has  been  abolished,  in  spite  of  the  fact  that  homicide 
is  more  common  than  in  any  other  civilized  country  in 
Europe,2  and  yet  criminal  procedure  is  in  such  a  condi- 
tion that  thousands  of  people  have  been  arrested  on  sus- 
picion, kept  in  prison  sometimes  for  years,  and  finally 
r  released   because  there  was   not  sufficient  ground  for 
trial.3     Thus  by  her  code  Italy  appears  to  be  in  ad- 
vance of  most  other  nations,  but  in  her  criminal  prac- 
tice she  is  really  far  behind  them.     The  truth  is  that 


1  Cf.  Jacini,  /  Conservatori,  pp.  67-68  ;  Minghetti,  /  Partiti  Politicly 
p.  100 ;  Pareto,  "  L'ltalie  Economique,"  Revue  des  Deux  Mondes,  Oct. 
15,   1891  ;  and  see   Bertolini,  "I   Pieiii  Poteri  per  le  Riforme  Orga- 
niche,"  Nuova  Antologia,  June  1,  1894. 

2  Turiello,  Fatti,  pp.  330-32. 

3  See  Speyer,  in  Unsere  Zeit,  1879,  vol.  i.  p.  576.     Petruccelli  della 
Gattina  says  (Storia  a"  Italia,  p.  258)  that  in  1876,  93,444  persons  were 
arrested  on  suspicion  and  let  off  because  there  was  no  ground  for  trial. 
This,  it  is  true,  was  eleven  years  before  the  code  was  finally  enacted  ; 
nevertheless  it  illustrates  the  contrast  between  ideals  and  practice  in 
criminal  matters,  and  in  fact  in  that  very  year  the  abolition  of  the  death 
penalty  was  voted  by  the  Chamber  of  Deputies,  but  rejected  by  the 
Senate. 


138  ITALY. 

the  successive  governments,  in  view  of  the  unsettled 
state  of  the  country,  have  been  afraid  to  place  re- 
straints on  their  own  power,  and  weaken  an  authority 
thought  necessary  for  the  preservation  of  order.  Of 
course  the  result  has  been  a  good  deal  of  arbitrary  offi- 
cialism and  disregard  of  the  rights  of  the  citizen,1  but 
while  this  is  a  misfortune  for  the  north  of  Italy,  ex- 
traordinary and  autocratic  power  has  at  times  been  in- 
dispensable in  Sicily  and  the  south.2  The  impossi- 
bility, indeed,  of  giving  effect  to  the  theories  of  liberty 
that  are  constantly  proclaimed  from  every  quarter  was 
forcibly  illustrated  by  the  only  serious  attempt  that 
has  been  made  to  do  so.  When  Cairoli  and  Zanardelli 
became  ministers  in  1878  they  tried  to  carry  out  their 
principles  thoroughly.  They  permitted  the  constitu- 
tional right  of  public  meeting  to  be  freely  exercised, 
and  gave  up  the  despotic  practice  of  preventive  arrest, 
trusting  to  the  courts  to  punish  offenders  against  the 
law ;  but  brigandage  increased  so  fast,  and  other  dis- 
turbances became  so  alarming,  that  the  cabinet  was 
driven  from  office,  and  its  policy  was  abandoned.  Of 
late  years  Zanardelli  has  again  held  office,  and  has 
succeeded  in  improving  the  administrative  and  judicial 
system  to  some  extent,  but  the  progress  of  the  reform 
has  been  extremely  slow,  and  the  arbitrary  power  of 
the  government,  although  reduced,  still  conforms  even 
in  quiet  times  far  more  nearly  to  French  than  to 
Anglo-Saxon  notions. 

There  are  two  matters  in  connection  with  the  admin* 

1  Cf.  Brasa,  p.  183. 

2  Cf.  Speyer,  in  Unsere  Zeit,  1879,  vol.  i.  p.  581. 


LEGISLATION  BY  ORDINANCE.  139 

istration  that  require  special  notice.     One   of  them  is 
the  power  of  the  executive  officials  to  make  r 

rru  •  i       Theordi- 

ordinances.      This  is  even   more  extensively  nance 

power. 

used  than  in  France,  and  there  are  complaints 
that  it  is  sometimes  carried  so  far  as  to  render  the  provi- 
sions of  a  statute  nugatory,1  although  the  constitution 
expressly  declares  that  "the  King  makes  the  decrees 
and  regulations  necessary  for  the  execution  of  the 
laws,  without  suspending  their  observance  or  dispensing 
with  them."  2  The  interpretation  put  upon  this  provi- 
sion is  in  fact  so  broad  that  the  government  is  practically 
allowed  to  suspend  the  law  subject  to  responsibility  to 
Parliament,  and  even  to  make  temporary  laws  which 
are  to  be  submitted  to  Parliament  later,  —  a  power  that 
is  used  when  a  tariff  bill  is  introduced,  to  prevent  large 
importations  before  the  tariff  goes  into  effect.3  The 
Parliament  has,  moreover,  a  habit  of  delegating  legis- 
lative power  to  the  ministers  in  the  most  astonishing 
way.  In  the  case  of  the  Italian  criminal  code,  for 
example,  the  final  text  was  never  submitted  to  the 
Chambers  at  all,  but  after  the  subject  had  been  suffi- 
ciently debated,  the  government  was  authorized  to 
make  a  complete  draft  of  the  code,  and  then  to  enact 
it  by  royal  decree,  harmonizing  it  with  itself  and  with 
other  statutes,  and  taking  into  account  the  views  ex- 

1  Brusa,  pp.  170-72. 

2  Statute,  Art.  6.     The  courts  have  power  to  refuse  to  apply  an  ordi- 
nance which  exceeds  the  authority  of  the  government,  but,  in  practice, 
this  is  not  an  effective  restraint.     Brusa,  pp.  171-72,  175,  187. 

8  Brusa,  pp.  186-87.  In  1891  the  customs  duties  on  several  articles 
were  increased  by  royal  decree,  which  was  subsequently  ratified  by  Par- 
liament. 


140  ITALY. 

pressed  by  the  Chambers.  The  same  was  true  of  the 
electoral  law  of  1882,  of  the  general  laws  on  local  gov- 
ernment and  on  the  Council  of  State,  and  of  many 
other  enactments.1  It  may  be  added  that  although  the 
Statuto  does  not  expressly  provide  for  it,  the  ministers, 
prefects,  syndics,  and  other  officials  are  in  the  habit  of 
making  decrees  on  subjects  of  minor  importance.2  The 
preference  indeed  for  administrative  regulations,  which 
the  government  can  change  at  any  time,  over  rigid 
statutes  is  deeply  implanted  in  the  Latin  races,  and 
seems  to  be  especially  marked  in  Italy.3 

The  other  matter  referred   to  as   requiring  special 

notice  is  the  civil  service.     The  host  of  offi- 

serviceand     cials,  who  are,  unfortunately,  too  numerous 

political        and  too  poorly  paid,4  can  be  appointed  or  dis- 

purposes.  . 

missed  very  much  at  the  pleasure  or  the 
government,  for  although  there  are  royal  decrees  regu- 
lating appointments  and  removals  in  many  cases,  they 

1  Brusa,  pp.  175-76;  Bertolini,  "I  Pieni   Poteri,"  Nuova  Antologia, 
June  1,  1894.     Several  laws  of  this  kind  may  be  found  in  the  Manuals  of 
the  Deputies.     They  are  issued  in  the  form  not  of  statutes,  but  of  ordi- 
nances, and  begin  by  reciting  the  legislative  authority  under  which  they 
are  made.    It  is  a  curious  fact  that  Italian  statutes  vary  a  great  deal, 
sometimes  containing  only  general  principles,  and  leaving  to  the  govern- 
ment the  task  of  completing  them    by  supplementary  regulations,  and 
sometimes  going  into  minute  details  (Brusa,  p.  171).    Dupriez,  who  looks 
at  the  matter  from  a  French  standpoint,  says  (vol.  i.  p.  336)  that  in  the 
struggle  between  the   government  and  the  Parliament   over  the  limits 
of  the  ordinance  power,  the  government  has  tried  to  extend  its  authority 
beyond  measure,  and  the  Parliament  to  dispute  it  even  in  the  matter  oi 
organizing  the  administrative  service. 

2  Brusa,  pp.  188-90. 

8  Minghetti,  pp.  293-94. 
*  Brusa,  p.  260. 


THE   ABUSE  OF  PATRONAGE.  141 

do  not  appear  to  furnish  a  satisfactory  guarantee.1 
Here,  then,  is  a  great  mass  of  spoils,  in  the  distribu- 
tion of  which  the  politicians  take  an  active  part.2  Such 
decrees,  providing  for  competitive  examinations  for 
admission  to  the  service,  are  indeed  common ;  and  in 
1890  a  statute,3  affecting  the  officers  in  the  department 
of  public  safety,  was  passed  with  provisions  for  such 
examinations,  and  for  preventing  removal  without  the 
consent  of  a  standing  commission.  But  civil  service 
laws,  like  all  others,  depend  for  much  of  their  effective- 
ness on  the  persons  who  execute  them.4 

Let  us  look  for  a  moment  at  the  local  government. 

1  Dupriez,  vol.  i.  pp.  337-40  ;   Brusa,  pp.  252-^55.    For  the  scope  of 
these  decrees,  see  p.  261  et  seq. 

2  Brusa,  pp.  152-63  ;  and  see  Dupriez,  vol.  i.  pp.  340-42. 
8  Law  of  Dec.  21,  1890. 

4  There  are  two  bodies  that  exercise  a  considerable  control  over  the 
government.  One  of  these  is  the  Council  of  State,  which  has,  however, 
only  an  advisory  power,  except  in  matters  of  administrative  justice,  and. 
in  the  case  of  provincial  and  communal  officials  whom  it  protects  from 
arbitrary  removal.  On  this  subject  see  Brusa,  p.  212  et  seq.  The  laws 
of  June  2,  1889,  which  regulate  this  body,  may  be  found  in  the  Manual 
of  the  Deputies  for  1892,  p.  357.  The  other  is  the  Courts  of  Accounts 
(Corte  del  Conti),  whose  members  can  be  removed  only  with  the  consent 
of  a  commission  composed  of  the  Presidents  and  Vice-Presidents  of  both 
Chambers.  It  has  a  limited  supervision  over  the  collection  of  the  revenue, 
and  passes  finally  on  pensions  and  on  the  accounts  of  officials,  provinces, 
and  communes.  It  also  makes  a  yearly  report  to  Parliament  on  the 
accounts  of  each  ministry  ;  but  its  most  extraordinary  function  consists  in 
the  fact  that  all  decrees  and  orders  which  involve  the  payment  of  more 
than  2,000  lire  must  be  submitted  to  it  for  registration,  and  if  it  thinks 
them  contrary  to  the  laws  or  regulations  it  can  refuse  to  register  them. 
It  is,  indeed,  obliged  to  register  them  if  the  Council  of  Ministers  insists 
upon  it,  but  in  that  case  they  must  be  transmitted  to  the  Presidents  of 
the  Chambers  together  with  the  opinion  of  the  Corte  del  Conti.  Law 
of  Aug.  14,  1862,  Arts.  14,  18,  19  ;  and  see  Brusa,  pp.  219-24. 


142  ITALY. 

The  Italian  statesmen  had  at  first  a  general  belief  in 
Local  gov-  decentralization,1  but  the  force  of  circum- 
stances and  a  repugnance  to  the  idea  of  fed- 
eration were  so  strong  that  the  old  territorial  divi- 
sions, which  could  alone  have  furnished  a  solid  basis 
for  a  decentralized  system,  were  abandoned,  and  the 
whole  country  was  cut  up  into  a  series  of  brand-new 
districts.  These  are  the  provinces,  the  circondari,  the 
mandamenti,  and  the  communes,2  of  which  the  first 
and  the  last  are  the  only  ones  of  great  importance. 
Until  the  Act  of  1888,  the  powers  conferred  on  the 
local  bodies  were  extremely  small,  and  even  now  they 
are  far  from  extensive,  for  the  whole  system  is  copied 
from  that  of  France,  and,  with  some  variations  in  de- 
tail, the  organization  and  powers  of  the  French  local 
^  officers  and  councils  have  been  followed  very  closely.3 
A  .general  description  of  the  local  government  would 
therefore  consist  very  largely  in  a  repetition  of  what 
has  been  already  said  in  the  first  chapter  on  France ; 
and  hence  it  is  only  necessary  to  touch  on  a  few  salient 
points,  begging  the  reader  to  remember  how  great  a 
power  and  how  large  a  share  of  political  patronage  this 

1  In  1868  the  Chamber  actually  voted  an  order  of  the  day  in  favor  of 
decentralization.     Petruccelli  della  Gattina,  pp.  192-95. 

2  In  the  provinces  of  Mantua  and  Venice  the  division  is  somewhat 
different,  but  is  being  brought  into  accord  with  the  general  plan.     Brusa, 
p.  339. 

3  For  a  description  of  the  local  government  see  Brusa,  p.  337  et  seq. 
The  full  text  of  the  law  on  the  subject  was  fixed  by  royal  ordinance 
on  Feb.  10,  1889,  in  accordance  with  the  Act  of  Dec.  30,  1888.     It  was 
followed  by  an  elaborate  ordinance  regulating  its  execution,  and  on  July 
7,  1889,  and  July  11,  1894,  by  acts  amending  the  law.     Manual  of 
Deps.,  1895,  pp.  301-94. 


LOCAL  GOVERNMENT.  143 

system  places  in  the  hands  of  the  central  authorities.1 
At  the  head  of  each  province,  which  corresponds  to 
the  French  department,  is  a  prefect  appointed  by  the 
King,  and  directly  subject  to  the  Minister  of  the  In- 
terior. Like  his  French  prototype,  he  is  regarded  as 
a  political  officer,  and  uses  his  influence  more  or  less 
openly  at  elections.2  The  chief  executive  magistrate 
of  the  commune  is  the  syndic ;  who  is  chosen,  like  the 
mayor  in  France,  by  the  communal  council  from  its  own 
members,  if  the  commune  has  more  than  ten  thousand 
inhabitants  or  is  the  capital  of  a  province  or  circondaro ; 
and  in  other  cases  is  selected  by  the  King  from  among 
the  members  of  the  council.*  As  in  France,  both  the 
provinces  and  the  communes  possess  elected  councils.  In 
Italy  they  are  chosen  for  six  years,  one  half  being  renewed 
every  three  years ;  but  the  suffrage,  for  these  bodies 
was  exceedingly  restricted,  until  by  the  Act  of  1888  it 
was  extended  so  as  to  be  somewhat  wider,  especially  as 
applied  to  the  peasants,  than  the  suffrage  for  the  elec- 
tion of  deputies.3  The  abuse  of  local  machinery  for 

1  In  practice  the  administration  appears  to  be,  if  anything,  even  more 
centralized  than  in  France,  owing  to  the  habit  on  the  part  of  the  officials 
of  referring  everything  to  the  central  government.     Jacini,  /  Conser- 
vatori,  p.  130  ;  Minghetti,  I  Partiti  Politici,  pp.  240-41. 

2  Brusa,  pp.  225,  277.     On  the  eve  of  the  elections  in  1892,  forty-six 
out  of  the  sixty-nine  prefects  were  dismissed  or  transferred  to  other 
provinces,  in  order  to  help  the  government  to  carry  the  country. 

*  By  a  law  of  July  7,  1896,  all  the  syndics  are  now  elected. 

8  The  other  communal  and  provincial  bodies  are  the  municipal  giunta, 
which  is  elected  by  the  communal  council,  and  has  executive  powers  ; 
the  provincial  deputation,  which  occupies  a  similar  position  in  the  prov- 
ince, and  is  elected  by  the  provincial  council  ;  the  prefectoral  council, 
appointed  by  the  central  government  to  assist  the  prefect ;  and  the  pro- 
vincial administrative  giunta,  partly  appointed  and  partly  elected,  which 


144  ITALY. 

political  purposes,  and  the  results  on  the  public  life  of 
the  nation,  will  be  discussed  later ;  but  it  is  proper  to 
remark  here  that  the  resources  of  the  local  bodies  are 
not  adequate  for  the  fulfillment  of  their  duties,  and 
this,  combined  with  a  love  of  municipal  display,  has 
been  the  cause  of  heavy  debts,  especially  in  the  case 
of  the  larger  cities,  many  of  which  have  long  been  on 
the  verge  of  bankruptcy.1 

There  is  one  branch  of  the  Italian  government  which 
The  judicial  ^as  no^  ^een  centralized,  and  that  is  the  ju- 
dicial system.  The  lower  courts  are,  indeed, 
new  creations,  organized  on  a  symmetrical  plan  very 
much  resembling  the  French  ;  but,  in  order  apparently 
itsdecen-  no^  ^°  offend  the  bench  and  bar  of  the  old 
aiization.  principalities,  the  highest  courts  have  been 
suffered  to  remain  in  the  more  important  capitals,  so 
that  there  are  now  five  independent  Courts  of  Cassa- 
tion, those  of  Turin,  Florence,  Naples,  Palermo,  and 
Rome,  each  of  which  has  final  and  supreme  authority, 
within  its  own  district,  on  all  questions  of  ordinary 
civil  law.2  The  Court  of  Cassation  at  Rome  has,  it  is 
true,  been  given  little  by  little  exclusive  jurisdiction 
over  certain  special  matters ; 3  but  the  ordinary  civil 

has  a  certain  share  in  administrative  justice,  and  whose  approval  is  neces- 
sary for  the  validity  of  some  of  the  most  important  acts  of  the  local 
councils.  For  a  list  of  these  acts  see  the  Local  Government  Law  of 
Feb.  10,  1889,  Arts.  142,  166-71,  173,  and  223. 

1  See  Brusa,  pp.  365-67  ;  Turiello,  Proposte,  pp.  56,  63-65. 

2  A  Court  of  Cassation  is  a  court  of   last  resort,  which  considers  only 
errors  in  law  in  the  decisions  of  inferior  tribunals. 

8  These  are,  conflicts  of  competence  between  different  courts,  or  be- 
tween the  courts  and  the  administration  ;  the  transfer  of  suits  from  one 
tourt  to  another  ;  disciplinary  matters  ;  and  writs  of  error  in  criminal 


THE  JUDICIAL  SYSTEM.  145 

jurisdiction  is  still  divided  among  the  five  Courts  of 
Cassation,  which  bear  the  same  relation  to  each  other 
as  the  highest  state  courts  in  America.1  There  is  no 
appeal  from  one  to  another,  and  no  one  of  them  feels 
bound  to  accept  the  decisions  of  the  others,  or  to  follow 
them  as  precedents.  One  cannot  help  thinking  that  this 
is  an  unfortunate  condition,  because  there  is  nothing 
that  tends  more  completely  to  consolidate  a  people, 
without  crushing  out  local  life,  than  a  uniform  admin- 
istration of  justice.  Italy  has,  indeed,  a  series  of  codes 
enacted  at  various  times  from  1865  to  1889,  and  cover- 
ing civil  law,  civil  procedure,  commercial  law,  criminal 
law,  and  criminal  procedure ;  but  a  code  alone  will  not 
produce  uniformity,  because  there  is  still  room  for 
differences  of  interpretation,  and  in  fact  the  Italian 
Courts  of  Cassation  often  disagree,  and  there  is  no  tri- 
bunal empowered  to  harmonize  their  decisions.2 

As  we  have  already  seen  in  the  case  of  France,  the 
decision  of  civil  and  criminal  questions  forms 
only  a  part  of  the  administration  of  justice  in  and  the 
continental  Europe,  on  account  of  the  distinc- 
tion drawn  between  public  and  private  law.3     In  order, 
therefore,  to  form  a  correct  estimate  of  the  position  of 

cases,  in  complaints  for  violation  of  election  laws,  in  civil  suits  against 
judges,  and  in  questions  of  taxes  and  of  church  property. 

1  For  the  organization  and  jurisdiction  of  the  courts,  see  Brusa,  pp. 
231-38. 

2  Cf.  Speyer,  in  Unsere  Zeit,  1879,  vol.  i.  p.  576. 

3  Belgium  presents  an  exception,  for  there  the  officials  can  be  sued, 
and  the  acts  of  the  government  can  be  reviewed  by  the  courts,  as  in  an 
Anglo-Saxon  country.    Cf.  Kerchove  de  Denterghem,  De  la  Responsabilite 
des  Ministres  dans  le  Droit  Public  Beige.     For  Switzerland,  see  chap.  xi. 
infra. 


146  ITALY. 

the  courts,  we  must  consider  their  relation  to  the  gov- 
ernment, and  their  power  to  determine  the  legality  of 
the  acts  of  public  officers.  In  Italy  the  prefects,  sub- 
prefects,  syndics,  and  their  subordinates  still  enjoy  the 
so-called  administrative  protection,  that  is,  they  cannot 
be  sued  or  prosecuted  for  their  official  conduct  with- 
out the  royal  consent.1  This  privilege  is  generally  un- 
popular, and  will  no  doubt  be  abolished  when  the  pro- 
posed bill  on  the  tenure  of  office  is  passed.  Meanwhile 
the  benefit  of  it  is  claimed  more  and  more  frequently, 
although  the  permission  to  proceed  appears  to  be  usually 
granted.2  But  even  when  this  protection  has  been 
taken  away,  the  courts  will  not  have  as  much  authority 
as  in  England  or  America.  The  reader  will  remember 
that  the  officers  of  the  French  government  formerly 
possessed  a  similar  privilege,  and  were  deprived  of  it 
after  the  fall  of  the  Second  Empire.  He  will  remember 
also  that  the  change  made  very  little  practical  difference, 
because  it  was  held  that  the  ordinary  courts  had  no 
power  to  pass  on  the  legality  of  official  acts,  such  ques- 
tions being  reserved  exclusively  for  the  administrative 
courts.  The  result  of  abolishing  the  privilege  will  not 
be  precisely  the  same  on  the  other  side  of  the  Alps, 
because  the  problem  has  been  worked  out  on  somewhat 
different  lines,  a  curious  attempt  having  been  made  to 
establish  a  compromise  between  the  English  and  the 
French  systems. 

1  Law  of  Feb.  10,  1889,  Arts.  8,  139. 

2  Brusa,  p.  282  ;  Turiello,  Fatti,  pp.  210-11.    The  permission  to  prose- 
cute is  not  necessary  in  the  case  of  offenses  against  the  election  laws, 
Law  of  Feb.  10,  1889,  Art.  100  et  seq. ;  Brusa,  pp.  73,  130,  note  1. 


ADMINISTRATIVE  LAW.  147 

The  subject  of   administrative  law  is,  indeed,  very 
confused  in  Italy,  and  a  few  years  ago  it  was  Admini9_ 
in    a    thoroughly    unsatisfactory    condition.   trativelaw- 
When  the  union  was  formed,  several  of  the  component 
states  possessed  administrative  courts  of  their  own  ;  but 
in  order  to  produce  uniformity,  and  also  with 
a  view  of  furnishing  the  rights  of  the  citizen  the  ordinary 
with  a  better  guarantee,  an  act  of  March  20, 
1865,  abolished  all  these  tribunals,  and  provided  that 
the  ordinary  courts  should  have  exclusive  jurisdiction  of 
all  criminal  prosecutions,  and  of  all  civil  cases  in  which 
a  civil  or  political  right  was  involved,  the  Council  of 
State  being  empowered  to  decide  whether  such  a  right 
was  involved  or  not.1     It  was  not  clearly  foreseen  that^ 
this  last  provision  would  place  in  the   hands  of   the 
government  an  effective  means  of  tyranny ; 2  but  such 
proved  to  be  the  case,  for  the  Council  of  State,  com- 
posed, as  it  was  at  that  time,  of  members  who  could  be 
removed  at  pleasure,3  showed  little  inclination  in  dis- 
puted cases  to  recognize  that  any  private  rights  were 
involved,  and,  there  being  no  administrative  courts  at 
all,  the   government   had   an  absolutely  free  hand  as 
soon   as  the  jurisdiction    of  the   ordinary  courts  was 
ousted.4    The  attempt  to  place  the  rights  of  the  citizen 

1  Legge  sul  Contenzioso  Administrative  (March  20,  1865).     See,  espe- 
cially, Arts.  1,  2,  3,  13. 

2  Perhaps  it  would  be  more  correct  to  say  that  it  was  not  foreseen 
how  this  power  would  be  used  for  party  purposes.     Minghetti,  /  Partiti 
Politici,  p.  270  et  seq. 

8  See  Legge  sul  Consiglio  di  Stato  of  March  20,  1865,  Art.  4. 
4  See  Brusa,  pp.  212-13,  247 ;  Minghetti,  /  Partiti  Politici,  p.  147  et 
teq. 


148  ITALT. 

more  fully  under  the  protection  of  the  ordinary  courts 
than  in  France  had  resulted  in  freeing  the  officials  more 
completely  from  all  control ;  for,  except  when  strong 
political  motives  come  into  play,  arbitrary  conduct  on 
the  part  of  the  French  officials  is  restrained  by  the 
administrative  courts.  This  state  of  the  law  in  Italy 
gave  rise  to  bitter  complaints,  but  it  lasted  until  1877, 
when  the  decision  of  conflicts,  as  they  are  called,  or 
Administra-  disputes  about  jurisdiction  between  the  ad- 
tive  courts.  ministration  and  the  courts,  was  transferred 
to  the  Court  of  Cassation  at  Rome.1  Still  there  was 
no  system  of  administrative  justice,  and  hence,  however 
illegal,  and  however  much  in  excess  of  the  authority  of 
the  official  who  made  it,  a  decree,  ordinance,  or  other 
act  might  be,  no  redress  could  be  obtained  from  any  tri- 
bunal unless  it  could  be  shown  that  an  actual  legal  right 
was  violated.2  This  omission  in  the  judicial  system  was 
finally  supplied  by  the  statutes  of  1889  and  1890, 
which  reorganized  the  Council  of  State,  created  a  spe- 
cial section  of  it  to  act  as  an  administrative  court,  and 
conferred  an  inferior  administrative  jurisdiction  on  the 
provincial  giunta.3  In  order  to  give  the  council  a  con- 
siderable degree  of  independence,  it  was  provided  at 
the  same  time  that  the  members,  whose  number  is  lim- 
ited, should  be  retired  only  on  account  of  sickness  and 
removed  only  for  breach  of  duty,  and  in  each  case  only 
after  hearing  the  opinion  of  the  Council  of  State  itself.4 

1  Law  of  March  31,  1877  (Manual  of  Deps.  1892,  p.  374). 

2  Cf.  Brusa,  pp.  247-50. 

8  These  acts,  June  2,  1889,  and  May  1, 1890,  are  printed  in  the  Manual 
for  1892,  at  pp.  357  and  377. 
4  Act  of  June  2, 1889,  Art.  4. 


THE  ADMINISTRATIVE  COURTS.  149 

The  section  which  acts  as  an  administrative  court 
enjoys  a  still  greater  degree  of  protection ;  for  it  is 
composed  of  a  president  and  eight  other  members 
selected  from  among  the  Councillors  of  State  by  the 
King,  and  of  these  eight  not  less  than  two  nor  more 
than  four  can  be  changed  in  any  one  year,.1  so  that, 
although  the  body  has  not  the  permanence  of  a  court 
of  law,  it  is  by  no  means  a  mere  tool  of  the  govern- 
ment. Except  in  purely  political  matters,  and  in  certain 
questions  relating  to  customs  duties  and  conscription, 
it  has  power  to  decide  whether  the  acts  of  the  cen- 
tral or  local  officers  are  authorized  by  law,  unless  some 
special  tribunal  or  the  ordinary  courts  have  jurisdic- 
tion.2 In  brief,  therefore,  the  legality  of  officiaLacts- 
is  determined  in  civil  cases  by  the  ordinary  courts 
when  a  question  of  private  right,  and  by  the  adminis- 
trative courts  when  a  question  only  of  interest,  is  in- 
volved. The  function  of  the  ordinary  courts  in  these~i 
cases  is,  however,  strictly  limited  to  the  protection  of 
the  individual,  and  does  not  involve  an  authoritative 
declaration  of  the  law,  for  it  is  expressly  provided  that  ~" 
the  judgment  must  be  confined  to  the  case  at  bar,  and 
in  that  alone  is  the  administration  bound  by  the  deci- 
sion.3 This  principle  is  deeply  rooted  in  the  jurispru- 
dence of  the  nation,  for  the  Statuto  itself  declares  that 
the  interpretation  of  the  law  in  such  a  way  as  to  be 
universally  binding  belongs  exclusively  to  the  legisla- 
tive power.4  The  Italian,  indeed,  has  a  dread  of  judge-  ~\ 
made  law,  which  is  really  the  most  wholesome  form  of 

1  Act  of  June  2, 1889,  Art.  8.  *  Id.,  Art.  24. 

«  Act  of  March  20, 1865,  Art.  4.  *  Statuto,  Art.  73. 


150  ITALY. 

legislation,  —  a  prejudice  that  certainly  seems  very 
strange  when  we  consider  what  a  large  part  of  the  law 
of  the  civilized  world,  and  especially  of  the  law  of  the 
Latin  races,  was  developed  by  means  of  the  edicts  of 

r  the  Roman  praetors. 

/-  It  will  be  observed  that  the  Italian  system  of  admin- 
The  Italian  istrative  law  differs  from  that  of  every  other 

:  .admlSstra-  nation.  According  to  the  English  principle, 
the  ordinary  courts  have  jurisdiction  in  all 


cases,  and  the  very  idea  of  administrative  law 
as  a  distinct  branch  of  jurisprudence  is  unknown.  In 
most  of  the  continental  countries,  on  the  other  hand, 
all  matters  involving  the  legality  of  official  acts  are 
reserved  for  a  special  class  of  courts,  which  have  exclu- 
sive cognizance  of  those  questions  which  constitute  the 
domain  of  administrative  law  ;  but  in  Italy  both  classes 
of  tribunals  are  called  upon  to  decide  the  same  ques- 
tions, the  ordinary  courts  being  speciaUy  empowered  to 
protect  legal  rights. 

As   seen  on    the    statute-book,  the   Italian  judicial 
system  appears  to  be  very  good.     It  seems 

The  judicial    /  -i        ,1         -     i-    -i      t        -At 

system  ap-  to  provide  the  individual  with  more  ample 
strong,  but  remedies,  and  a  better  guarantee  against  arbi- 
trary conduct  on  the  part  of  the  officials, 
than  can  be  found  in  most  of  the  countries  of  conti- 
nental Europe.  But  in  fact  the  judiciary  is  not  strong 
enough  to  protect  the  citizen  effectually.  This  is 
chiefly  due,  no  doubt,  to  the  absence  of  those  deep- 
seated  traditions  that  are  necessary  to  give  the  magis- 
trates a  controlling  authority  over  public  opinion.  It 
is  due  also  to  the  existence  of  the  five  independent 


WEAKNESS  OF  THE  JUDICIAL  SYSTEM.  151 

Courts  of  Cassation,  which  prevents  any  one  court  from 
having  the  power  that  might  be  acquired  by  a  supreme 
national  tribunal;  and  indeed  it  is  self-evident  that 
a  decentralized  judiciary  can  hardly  be  expected  to  ' 
restrain  a  centralized  administration.  Nor  insufficient 
is  the  protection  afforded  to  the  bench  sat-  Pfr?heection  J 
isfactory.  The  constitution  provides  that  Judges- 
judges,  except  in  the  lowest  courts,  shah1  be  irremovable 
after  three  years  of  service,1  and  by  statute  they  can  be 
retired  only  on  account  of  illness,  and  removed  only 
for  crime  or  neglect  of  duty,  and  in  these  cases  only 
with  the  approval  of  the  Court  of  Cassation  at  Rome. 
But  a  judge  is  not  protected  against  a  transfer  from 
one  judicial  post  to  another  of  the  same  rank,  and 
although  by  royal  decree  a  commission  annually  ap- 
pointed by  the  court  at  Rome  must  be  consulted  before 
such  a  transfer  can  be  made,  its  advice  is  not  binding 
on  the  government.2  The  judges  are,  therefore,  by 
no  means  entirely  independent  of  the  executive,  and 
complaints  are  often  made  that  they  are  altogether  too 
much  under  its  control.  It  is  impossible  to  say  how 
far  these  complaints  are  justified,3  but  it  is  certain  that 

1  Statute,  Art.  69. 

a  Brusa,  pp.  277-78.  In  1878  this  decree  was  repealed  for  a  time,  and 
one  hundred  and  twenty-two  transfers  were  made  in  six  months.  Min- 
ghetti,  pp.  134-35. 

3  Writing  in  1878,  Jacini  (/  Conservatori,  p.  29)  said  that,  so  far,  the 
judiciary  had  resisted  all  party  pressure,  but  since  that  time  this  does 
not  seem  to  have  been  true.  See  Minghetti,  ubi  supra  ;  Turiello,  Fatti, 
p.  316  ;  Proposte,  pp.  234-35  ;  De  Viti  di  Marco,  "  The  Political  Situation 
in  Italy,"  Nineteenth  Cent.,  Oct.,  1895  ;  Pare  to,  «  L'ltalie  Economique," 
Revue  des  Deux  Mondes,  Oct.  15,  1891,  Giornale  del  Economisti,  March, 
1895,  p.  353  ;  Ruiz,  Ann.  Amer.  Acad.  of  Pol.  Sci.,  Sept.,  1895,  p.  54 ; 


VOL.  I. 


152  ITALY. 

the  judiciary  either  has  not  enough  power,  or  does  not 
feel  sufficiently  free,  to  protect  individuals  against  an 
oppressive  abuse  of  political  power,  especially  in  local 
matters.  This  is  true  even  in  tranquil  times,  while 
the  wholesale  resort  to  martial  law  by  the  proclamation 
of  the  state  of  siege  during  the  recent  troubles  in 
Sicily  and  at  Carrara  shows  that  the  courts  are  unable 
to  cope  with  disorder  on  any  large  scale.1 

The  judicial  system  has   been    dwelt  upon  here  at 

'    what  may  seem  an  inordinate  length  because  its  condi- 
tion is  one  of  the  most  important  factors  in  the  present 

^  political  condition  of  the  kingdom. 

There  is  one  institution  in  Italy  which  is  not  strictly 
The  church.  a  Par^  °^  *ne  government,  but  is  so  closely 
The  Italians  connec^ed  with  it,  and  has  so  direct  an  influ- 
whoiT  ence  on  politics,  that  it  cannot  be  passed  over. 
CathoKc.  Tnig  ig  tne  Catholic  church.  Within  the 
last  quarter  of  a  century  every  country  in  central 
Europe  has  found  itself  confronted  with  the  Catholic 
question,  and  has  been  obliged  to  grapple  with  it ;  but 
the  matter  has  a  peculiar  importance  in  Italy.  Not 
because  the  Italian  is  fanatical.  On  the  contrary,  his 
intense  religious  fervor  seems  to  have  burned  itself 
out  during  the  Middle  Ages,  and  has  left  him  com- 

Wolffson,  "  Italian  Secret  Societies,"  Contemp.  Rev.,  May,  1891  ;  Lord, 
"  Italia  non  Fara  da  Se,"  Nineteenth  Cent.,  March,  1892.  The  charge 
that  the  courts  were  subject  to  political  influence  was  made  by  the  Parlia- 
mentary committee  on  the  bank  scandals  in  December,  1894. 

1  Contrast  with  these  events  the  Chicago  riots  of  1894,  where  not  only 
the  military  authorities  never  superseded  the  judicial,  but  where  the  na- 
tional troops  were  called  into  action  solely  by  means  of  the  United  States 
courts. 


CHURCH  AND  STATE.  153 

paratively  indifferent ;  yet  he  clings  to  the  church  with 
a  tenacity  that  is  out  of  proportion  to  his  zeal.1  This 
is  due  partly  to  the  fact  that  he  knows  no  other  creed, 
and  partly  to  his  conservative  nature,  but  chiefly,  per- 
haps, to  the  fact  that  the  ceremonies  and  rites  of  the 
Catholic  faith,  having  been  moulded  for  the  most  part 
by  his  own  race,  are  closely  fitted  to  his  temperament, 
and  therefore  continue  to  attract  him  strongly,  espe-  « 
cially  on  the  aesthetic  side.  The  nation  is  almost  wholly 
Catholic,  and  to-day,  as  in  the  past,  the  church  in  Italy 
is  assailed,  not  by  heretics,  but  by  her  own  children. 
Cavour  proclaimed  the  doctrine  of  a  free  church  in 

a  free   state:   but    although   the  church   is 

.    ,       '  £  ,,  ,,        The  doc- 

more   independent  or  the  government  than  trine  of  a 

.    iii  i     •     •      •  *ii  free  church 

might  have  been  expected,  it  is  impossible  to  in  a  free 
carry  the   principle  out   fully  in   a  country 
where  there  is  only  one  religious  body,  and  where  that 
body  has  always  been  intimately  connected  with  public 
life.     The  church  could   not   be  independent  of   the" 
state  in  Italy  in  the  same  sense  that  it  is  in  America, 
and  this  fact  has  led  some  of  the  Italian  advocates  of 
the   doctrine  to   misunderstand   it   completely.     They 
complain,  for  example,  that  the  actual  relation  between 
church  and  state  is  based  on  the  idea  that  the  church 
is  a  private  association  instead  of  a  public  institution, 
and  lament  that  the  state  has  surrendered  too  much  its 


1  Sir  Charles  Dilke,  in  his  Present  Position  of  European  Politics 
(pp.  261-62),  quotes  the  saying  that  the  Italians  would  be  a  nation  of 
freethinkers  if  they  had  ever  been  known  to  think,  and  remarks  that 
although  the  epigram  is  unfair,  there  is  a  certain  measure  of  truth  under- 
lying it. 


154  ITALY. 

control  over  the  education  of  priests,1  —  expressions 
which  amount  to  a  complaint  that  the  church  is  too 
free.  But,  although  the  principle  cannot  be  applied 
rigorously  in  Italy,  it  has  been  carried  out  to  a  consid- 
erable extent.  The  state  has  abandoned  the  right  of 
nomination  to  ecclesiastical  offices,  which  had  existed 
in  some  of  the  former  Italian  principalities;  and  the 
bishops  are  no  longer  required  to  take  an  oath  of 
allegiance  to  the  King.2  Moreover,  the  so-called  exe- 
quatur and.  placet,  that  is,  the  requirement  of  permits 
from  the  government  for  the  publication  and  execution 
of  the  acts  of  ecclesiastical  authorities,  have  been  given 
up.3  The  state  has  also  renounced  all  control  over 
the  seminaries  for  priests  in  Rome,4  and  rarely  inter- 
feres with  those  elsewhere ; 5  and  finally  the  church  has 
been  granted  freedom  of  meeting,  of  publication,  and 
of  jurisdiction  in  spiritual  matters.6  Conversely,  the 
acts  of  the  ecclesiastical  authorities  have  ceased  to  be 

privileged.     They  have  no  legal  force  if  they  are  con- 

.... 

1  See,  for  example,  Brusa,  pp.  426-27,  429. 

2  Act  of  May  13,  1871,  Tit.  ii.  Art.  15.     It  has  been  decided  that  in 
the  case  of  the  lower  clergy  the  oath  was  not  dispensed  with  wherever 
it  had  been  required   by    earlier  laws  (Brusa,  p.   428)  ;   and  even  the 
bishops  are  not  entirely  independent  of  the  state,  for  the  royal  exequatur 
is  still  required  for  the  enjoyment  of  their  revenues  (Id.,  p.  437).     At 
times  these   have   actually  been   withheld,  notably  in  1877.      Speyer, 
in  Unsere  Zeit,  1878,  vol.  ii.  p.  604. 

3  Act  of  May  13,  1871,  Tit.  ii.  Art.  16. 

4  Id.,  Tit.  i.  Art.  13. 

5  Brusa,  p.  438. 

6  Id.,  Tit.  ii.  Arts.   14,  16,   17.      Religious  processions  outside  the 
churches  may  be  forbidden  by  the  local  authorities,  if  they  are  liable  to 
interfere  with  public  order  or  public  health.     Law  of  June  30,  1889, 

-Art.  8. 


THE  MONASTIC  ORDERS.  155 

trary  to  law  or  violate  private  rights,  and  they  are  not 
exempt  from  the  provisions  of  the  criminal  code.1 

A  thorny  question  for  the  new  kingdom  was  involved 
in  the  position  of  the  monastic  orders,  many  Treatment 
of  which  still  held  great  tracts  of  knd,  but  nLticem°~ 
had  long  outlived  their  usefulness  and  were  orders; 
felt  to  be  an  anachronism.  The  solution  adopted, 
though  almost  a  necessity,  was  drastic,  and  illustrates 
how  far  the  theory  of  a  free  church  in  a  free  state 
was  at  this  time  from  being  a  reality.  The  order 
of  Jesuits  was  absolutely  excluded  from  the  king- 
dom ; 2  and  even  in  the  case  of  the  other  bodies,  which 
had  not  aroused  such  violent  antipathy,  the  govern- 
ment determined,  while  sparing  the  existing  members, 
to  forbid  the  enrollment  of  any  new  recruits.  By 
the  statutes  of  1866  and  1867,  therefore,  all  these 
monastic  institutions  and  most  of  the  benefices  without 
a  cure  of  souls  were  suppressed,  and  their  property 
transferred  to  the  state  to  be  employed  for  the  support 
of  religion ;  but  a  pension  for  life  was  reserved  to  the 
present  possessors,  who  were  also  allowed  to  remain  in 
their  establishments.3  Every  traveler  will  remember 
the  aged  monks  in  white  frocks  who  may  still  be 
seen  wandering  among  the  cloisters  of  the  Val  d'  Ema, 
near  Florence.  These  are  the  last  representatives  of  a 
mighty  order  that  once  overshadowed  Christendom,  and 

1  Act  of  May  13,  1871,  Tit.  ii.  Art.  17.     The  Penal  Code  of  1888 
specially  punishes  abuse  of  language  by  the  clergy.     Brusa,  p.  61. 

2  Brusa,  p.  56,  note  4. 

8  Acts  of  July  7,  1866,  and  Aug.  15,  1867.  See,  also,  Brusa,  pp.  431- 
33.  By  an  Act  of  1873  these  provisions  were  applied  to  Rome,  bat  in 
a  modified  form.  Brusa,  Ib. 


156  ITALY. 

with  the  spirit  of  romance  which  Italy  cannot  shake  off 
even  if  she  would,  they  have  been  allowed  to  drop  away 
one  by  one  until  the  monastery  becomes  silent  forever. 
The  convents  were  not  the  only  great  landowners 
and  of  the  *u  tne  church.  Many  of  the  higher  secular 
oUheTcu?  clergy  were  also  richly  endowed.  But  there 
lar  clergy.  wag  a  strong  fe^g  that  the  soil  of  the 

country  ought  to  be  controlled  by  laymen,  and  that 
the  larger  ecclesiastical  incomes  ought  to  be  reduced. 
This  f eeling  found  its  expression  in  the  same  statutes 
of  1866  and  1867,  by  which  all  church  lands,  except 
those  belonging  to  parishes,  those  used  by  bishops 
and  other  dignitaries,  and  buildings  actually  devoted 
to  worship,  were  taken  by  the  state  and  converted  into 
perpetual  five  per  cent,  annuities ; 1  while  all  ecclesias- 
tical revenues,  not  of  a  parochial  nature,  were  taxed 
thirty  per  cent.,  or  in  other  words  partially  confiscated.2 
By  far  the  most  difficult  question  was  presented  by 
The  position  *ne  papacy.  The  Holy  See  had  ruled  over 
of  the  Pope.  a  territory  of  considerable  size  extending 
across  the  peninsula  from  the  Mediterranean  to  the 
Adriatic.  It  pretended  to  trace  its  rights  from  a 
grant  made  in  the  fourth  century  by  the  Emperor 
Constantine  the  Great  to  Pope  Sylvester,  and  in  fact 

*  Act  of  July  7,  1866,  Arts.  11-18. 

2  Act  of  Aug.  15,  1867,  Art.  18.  By  the  Act  of  July  7,  1866,  Art. 
31,  the  revenues  of  bishops  exceeding  10,000  lire  are  taxed  progressively 
for  the  benefit  of  the  general  fund  for  religion,  the  whole  excess  above 
60,000  lire  being  so  taken.  But  if,  on  the  other  hand,  the  income  of  a 
bishop  falls  below  6,000  lire,  it  is  made  up  to  that  sum  out  of  the  gen- 
eral fund  (Art.  19).  Similar  taxes  for  the  benefit  of  the  fund  are 
imposed  on  other  ecclesiastical  revenues.  In  the  Act  of  1873,  Rome  was 
more  gently  treated.  Brusa,  pp.  432-33. 


THE  POPE.  157 

its  dominion  was  as  old  and  well  founded  as  that  of 
any  monarch  in  Europe.  It  felt  that  the  sovereignty 
over  its  own  States  —  the  so-called  Temporal  Power  — 
was  necessary  for  its  independence,  and  that  if  the- 
Pope  lived  in  a  city  subject  to  another  ruler  he  could 
not  remain  entirely  free  in  spiritual  matters.  But  the 
Italians  felt  no  less  strongly  that  their  country  would 
never  be  a  complete  nation  until  it  included  everything 
between  the  Alps  and  the  sea,  with  Rome  as  its  capi-  j 
tal,  and  this  feeling  was  fully  shared  by  the  Romans 
themselves. 

The  northern  and  eastern  part  of  the  Papal  States 
was  annexed  to  the  new  Kingdom  of  Italy  The  Papal 
at  the  same  time  as  Naples  and  Sicily,  that  nexSby 
is  in  1860 ;  but  Rome  and  the  country  about  Italy' 
it  was  protected  by  Napoleon  III.,  whose  power  de- 
pended so  much  on  the  support  of  his  ultramontane 
subjects  that  he  could  not  safely  desert  the  cause  of 
the   Pope.     Italy  chafed   under  his  interference,  and 
waited  uneasily  until  the  war  with  Prussia  forced  him 
to  recall  his  troops.     Then  came  the  revolution  that 
overturned   his   throne.     An   Italian    army    at    once 
crossed  the  frontier  of  the  Papal  States,  and  entered 
Rome  on  September  20,  1870. 

The  problem  before  the  government  was  a  delicate 
one,  because  any  appearance  of  an  intention  The  law  of 
to  treat  the  Pope  as  an  Italian  subject  would  Guarantees. 
have  excited   the  indignation  of   the  whole   Catholic  v 
world,  and  might  have  led  to  foreign  complications,  ^ 
or  even  to  an  armed  intervention*  in  favor  of  the  Tem- 
poral Power.     The  cabinet  determined,  therefore,  that 


158  ITALY. 

a  law  fixing  definitely  the  position  and  privileges  of 
the  Holy  See  should  be  passed  before  the  seat  of 
government  was  moved  to  Rome.  Recognizing  the 
peculiar  relations  of  the  Pope  to  other  States,  the 
ministers  proposed  to  make  this  law  one  of  interna- 
tional bearing,  so  that  it  would  have  an  effect  analo- 
gous to  that  of  a  treaty,  but  they  yielded  to  the  firm 
opposition  of  the  Left  in  the  Chamber,  and  the  act 
was  finally  passed  as  a  piece  of  domestic  legislation.1 
1  This  is  the  celebrated  Law  of  the  Papal  Guarantees, 
.which  was  enacted  in  May,  1871,  and  remains  un- 
changed at  the  present  day.  Its  object  is  to  insure 
freedom  of  the  Pope  in  the  exercise  of  all  his 
spiritual  functions,  and  for  that  purpose  it  surrounds 
L  _him  with  most  of  the  privileges  of  sovereignty.  His 
person  is  declared  sacred  and  inviolable ;  assaults  or 
public  slander  directed  against  him  being  punishable 
like  similar  offenses  against  the  King.  Public  officials 
in  the  exercise  of  their  duties  are  forbidden  to  enter 
his  palace  or  its  grounds ;  and  the  same  exemption 
applies  to  the  place  of  meeting  of  a  Conclave  or  (Ecu^ 
menic  Council.  Searching  any  papal  offices  that  have 
solely  spiritual  functions,  or  confiscating  papers  there- 
from, is  prohibited,  and  it  is  provided  that  priests 
shall  not  be  punished  or  questioned  for  publishing, 
in  the  course  of  their  duties,  the  acts  of  the  spiritual 
authority  of  the  Holy  See.  The  Pope  is  accorded  the 
honors  of  a  sovereign  prince,  and  persons  accredited 
to  him  enjoy  all  the  immunities  of  diplomatic  agents. 
He  is  guaranteed  free  intercourse  with  the  bishops, 
1  Petruccelli  della  Gattina,  Storia  d'  Italia,  pp.  93-94. 


THE  POPE.  159 

and  indeed  with  the  whole  Catholic  world,  messages 
sent  in  his  name  being  placed  on  the  same  footing 
as  those  of  foreign  governments.  Moreover  he  is 
granted  a  perpetual  annuity  of  over  six  hundred 
thousand  dollars,  which  is  entered  in  the  great  book 
of  state  debts,  and  is  free  from  all  tax.  This  grant 
he  has  always  refused  to  accept,  and  every  year  it  is 
returned  to  the  treasury.  Finally  he  is  left  in  abso- 
lute possession  of  the  palaces  of  the  Vatican,  the 
Lateran,  and  Castel  Gandolfo,  with  all  their  buildings, 
gardens,  and  lands,  free  of  taxes.1 

It  will  be  observed  that  this  law,  —  which  appears, 
by  the  way,  to  have  been  faithfully  carried  Refusal  of 
out  by  the  Italian  government,  —  assures  to  ^cept  th^° 
the  Pope  absolute  freedom  in  the  exercise  of  situation- 
his  functions  as  head  of  the  Catholic  church,  and 
guards  him  against  all  personal  disrespect.  Neverthe- 
less neither  Pius  IX.  nor  his  successor  Leo  XIII.  has 
been  willing  to  accept  it ;  and  indeed  they  could  not 
have  done  so  without  acknowledging  the  authority  of 
the  government  by  which  it  was  enacted,  and  this 
they  have  never  been  willing  to  do.  They  have  not 
ceased  for  a  moment  to  protest  against  the  destruction 
of  the  Temporal  Power;  in  fact,  they  have  avoided 
everything  that  could  possibly  be  construed  as  a  rec- 
ognition of  the  Kingdom  of  Italy.  The  Pope  has 
affected  to  consider  himself  a  prisoner,  and  since  the 

1  This  is  the  law  of  May  13,  1871,  several  sections  of  which  have 
already  been  cited.  There  is  a  criticism  of  the  legal  situation  of  the 
Holy  See  from  a  papal  standpoint  by  Comte  Rostworowski,  entitled  "  La 
Situation  Internationale  du  Saint-Siege,"  in  the  Ann.  de  VEcole  Libre 
des  Sciences  Politiques,  1892,  p.  102. 


160  ITALY. 

the  royal  cannon  opened  a  breach  in  the  Roman  walls 
at  the  Porta  Pia  has  he  placed  his  foot  outside  the 
grounds  of  the  Vatican.1  He  has  even  refused  to 
allow  the  clerical  party  to  vote  for  deputies  to  Parlia- 
ment, on  the  ground  that  this  would  involve  a  tacit 
acknowledgment  of  the  legality  of  the  existing  govern- 
ment ;  and  thus  a  large  portion  of  the  Italian  people 
takes  no  part  in  national  politics,  although  the  same 
men  vote  freely  and  sometimes  win  victories  at  munici- 
pal elections.2  Such  a  condition  of  things  is  very  unfor- 
tunate, for  it  tends  to  create  a  hostility  between  religion 
and  patriotism,  and  makes  it  very  hard  for  a  man  to  be 
faithful  both  to  his  church  and  his  country.  If  the 
Italians  had  any  liking  for  other  sects,  these  would  no 
doubt  increase  rapidly ;  but  as  religion  and  Catholi- 
cism are  synonymous  terms  in  Italy,  the  antagonism  be- 
tween church  and  state  merely  stimulates  skepticism 
and  indifference. 

It  is  not  easy  to  see  how  the  papal  question  will  finally 
Solution  of     be  solved.     Pope  Leo  XIII  was  a   man  of 

the  papal  i         •  i  i  i  • 

question dif-  great  tact,  and  with  marvelous  dexterity  he 

ficultforthe    &.  _.  .      ,       _  J 

Vatican.  changed  the  policy  01  the  Vatican  so  as  to 
bring  it  into  harmony  with  the  nineteenth  century.  He 
made  a  peace  with  Bismarck  by  which  the  Iron  Chan- 
cellor virtually  acknowledged  defeat ;  and  by  his  con- 
ciliatory tone  towards  the  French  Republic  he  made  fair 
headway  in  checking  the  Radicals  in  France  with  their 
hatred  of  the  church.  Yet  even  Leo  XIII  was  unable  to 
come  to  terms  with  Italy.  One  thing  is  clear.  Italy  will 

1  Until  1888  he  did  not  even  appear  in  St.  Peter's. 

2  In  1905  an  encyclical  of  Pius  X  somewhat  relaxed  the  prohibition. 


THE  POPE.  161 

never  give  up  Rome,  nor  is  there  the  slightest  prob- 
ability that  any  foreign  country  will  try  to  force 
her  to  do  so ;  and,  indeed,  it  is  said  that  even  in  the 
Vatican  the  restoration  of  the  Temporal  Power  is 
considered  hopeless.1  To  the  outside  observer  it 
hardly  appears  desirable  in  the  interest  of  the  papacy 
itself,  because  with  the  loss  of  its  secular  functions,  the 
Holy  See  has  gained  enormously  in  ecclesiastical 
authority.  This  is  not  an  accident,  for  the  destruc- 
tion of  the  Temporal  Power  is  one  step  in  the  long 
movement  for  the  separation  of  church  and  state, 
which  during  the  last  hundred  years  has  been  break- 
ing the  local  and  national  ties  of  the  clergy  in  the 
different  countries,  and  has  thus  made  the  Catholic 
church  more  cosmopolitan,  more  centralized,  and  more 
dependent  on  its  spiritual  head.  Such,  however,  is 
not  the  view  of  many  ardent  Catholics,  who  are  so 
dissatisfied  with  the  present  situation  that  a  departure 
of  the  Pope  from  Rome  has  often  been  suggested ;  but 
although  on  more  than  one  occasion  a  removal  has 
been  said  to  be  imminent,  it  is  in  the  highest  degree 

1  In  an  answer  ("  Italy,  France,  and  the  Papacy,"  Contemp.  Rev.,  Aug., 
1891)  to  an  article  entitled  "The  Savoy  Dynasty,  the  Pope,  and  the  Re- 
public," by  an  anonymous  writer  (Contemp.  Rev.,  Apr.,  1891),  Crispi 
speaks  of  the  possibility  of  a  French  intervention  in  favor  of  the  Tem- 
poral Power  as  a  real  danger.  One  cannot  help  feeling  that  this  must 
have  been  said  rather  for  its  effect  than  from  conviction.  In  a  previous 
answer  to  the  same  article  ("  Italy  and  France,"  Contemp.  Rev.y  June, 
1891),  Crispi  makes  the  interesting  statement  that  even  in  Rome  only 
the  highest  church  dignitaries  want  the  Temporal  Power,  while  over  the 
rest  of  Italy  the  clergy  never  were  papal,  and  are  not  so  now.  In  a 
later  number  of  the  same  Review  the  Triple  Alliance  and  the  papal 
question  are  further  discussed  by  Emile  de  Laveleye  ("  The  Foreign 
Policy  of  Italy,"  Contemp.  Reo.t  Feb.,  1892.) 


162  ITALY. 

unlikely,  for  the  Holy  See  could  not  get  from  any 
other  state  in  whose  territory  it  might  settle  terms 
more  favorable  than  those  accorded  by  the  Law  of  the 
Papal  Guarantees,  and  even  if  it  should  accept  a  grant 
of  complete  sovereignty  over  some  island  or  small  tract 
of  land,  the  loss  in  prestige  from  the  change  of  resi- 
dence would  be  incalculable.  The  veneration  of  the 
past  still  clings  to  Rome,  and  although  the  splendor 
of  the  Vatican  is  gone,  the  Pope  bereft  of  his  Tem- 
poral Power  wields  a  greater  spiritual  influence  than 
he  has  had  for  centuries. 


GERMANY 


CHAPTER  IVT 
GERMANY:  THE  STRUCTURE  OF  THE  EMPIRE. 

CHERBULIEZ  has  remarked  that  most  countries  which 

have  grown  in  size  have  started  with  a  com- 

of  Germany   pact  territory  and  increased  it  by  absorbing 

under  the         r.  J    .  J      . 

Holy  Roman  the   adiacent  lands,  but  that  Prussia  began 

Empire.  J 

with  her  frontiers  and  afterwards  filled  in 
between  them.  The  statement  is  almost  literally  true, 
for  early  in  the  seventeenth  century  the  Electors  of 
Brandenburg,  who  were  the  ancestors  of  the  Kings  of 
Prussia,  acquired  the  large  Duchy  of  Prussia  on  the 
Baltic  and  the  Duchy  of  Cleves  on  the  Rhine,  posses- 
sions which  form  to-day  very  nearly  the  extreme  limits 
of  the  Prussian  monarchy  on  the  east  and  west.  At 
that  time  these  duchies  did  not  touch  the  Electors' 
other  territories,  and  in  fact  until  less  than  thirty  years 
ago  several  States  were  so  wedged  in  among  the  Prus- 
sian dominions  as  to  cut  the  kingdom  quite  in  two. 
Nor  was  this  the  case  with  Prussia  alone.  The  whole 
map  of  Germany  as  it  stood  in  the  last  century  was  a 
mass  of  patches  of  different  color  mingled  together  in 
bewildering  confusion.  Not  only  were  some  of  the  prin- 
cipalities inconceivably  small,  but  they  often  consisted  in 
part  of  outlying  districts  at  a  distance  from  one  another, 
and  entirely  surrounded  by  the  estates  of  some  other 
potentate.  The  cause  of  such  a  state  of  things  is  to  be 


THE  GROWTH  OF  PRUSSIA.  165 

found  in  the  excessive  development  of  the  feudal  sys- 
tem, which  treated  sovereignty  as  a  private  right  of  the 
ruler,  so  that  princes  dealt  with  their  fiefs  very  much  as 
men  do  with  their  lands  to-day.  They  acquired  them 
freely  in  all  directions  by  inheritance,  by  marriage,  and 
even  by  purchase,  and,  what  was  worse,  at  their  death 
they  divided  them  as  they  pleased  among  their  sons. 
Still  another  source  of  confusion  was  presented  by  the 
bishops  and  other  high  church  dignitaries,  who  held 
large  estates  which  they  ruled  as  temporal  sovereigns. 
The  result  was  that  Germany  was  divided  in  a  most 
fantastic  way  among  several  hundred  princes,  who  owed, 
it  is  true,  a  shadowy  allegiance  to  the  Emperor  as  head 
of  the  Holy  Roman  Empire,  but  for  all  practical  pur- 
poses were  virtually  independent. 

Almost  alone  among  the  German  States  Prussia  was 
steadily   gaining   in    size   and   power.      Her  The  growth 
growth  may  be  traced  primarily  to  the  Con-  of  Prussia- 
stitutio  Achillea  of  1473,  which  forbade  the  splitting 
up  of  the  monarchy  among  the  sons  of  the  Electors,  and 
thus  kept  all  their  dominions  together ;  but  it  was  due 
chiefly  to  the  thrift,  the  energy,  and  the  sagacity  of  the 
rulers  of  the  House  of  Hohenzollern.    At  the  close  of  the 
thirty  years'  war,  in  1648,  the  Great  Elector  obtained 
possessions  which  made  his  domains  larger  than  those  of 
any  other  German  State  except  Austria,  and  in  the  next 
century  the  annexations  of  Frederic  the  Great 
more  than  doubled  the  population  of  his  king-  ati6me?butr 
dom.     The  growth  of  Prussia  was  suddenly  helped  by 
checked  by  an  event  that  tended  ultimately 
to  hasten  its  development.     This  was  the  outbreak  of 


166  GERMANY. 

the  French  Revolution  and  the  career  of  Bonaparte. 
When  a  series  of  victories  had  laid  Germany  at  his  feet, 
Napoleon  suppressed  a  large  number  of  petty  principali- 
ties including  all  the  ecclesiastical  ones,  and  combined 
the  smaller  States  that  remained  into  the  Confederation 
of  the  Rhine.  He  also  deprived  Prussia  of  half  her 
territory,  thinking  by  these  means  to  reduce  her  to 
impotence,  and  create  in  the  heart  of  Germany  a  body 
that  would  always  be  devoted  to  the  cause  of  France. 
But  in  fact  the  petty  principalities  had  been  too  small 
to  act  separately  or  to  combine  effectively,  and  too 
independent  to  be  made  serviceable  by  any  sovereign ; 
and  by  suppressing  them  Napoleon  had  given  the  Ger- 
mans some  little  capacity  for  organization,  which  was 
used  against  him  as  soon  as  the  tide  turned.1 

After  his  overthrow  Germany  was  reorganized  by 
The  Ger-  the  treaty  of  Vienna,  and  the  States,  which 
Station"  now  numbered  only  thirty-nine,  were  formed 
and  the  Diet.  into  ft  ^^  conf  ^ration.  This  was  not 

properly  a  federal  union,  but  rather  a  perpetual  in- 
ternational alliance,  the  States  remaining  separate  and 
independent,  except  for  matters  affecting  the  external 
and  internal  safety  of  Germany.  The  only  organ  of 
the  Confederation  was  a  Diet  composed  of  the  diplo- 
matic agents  of  the  different  States,  who  acted  like 
ambassadors,  and  voted  in  accordance  with  the  instruc- 
tions they  received  from  their  respective  governments. 

1  This  is  very  well  stated  by  Colonel  Malleson  in  his  Refounding  of  the 
German  Empire,  pp.  4-6.  Napoleon  prophesied  that  within  fifty  years  all 
Europe  would  be  either  Republican  or  Cossack.  One  of  the  chief  causes 
of  the  failure  of  this  prediction  has  been  the  creation  of  a  united  Germany, 
which  Napoleon  himself  unwittingly  helped  to  bring  about. 


THE  GERMANIC   CONFEDERATION.  167 

It  had  power  to  declare  war  and  make  peace,  to  or- 
ganize the  federal  army,  to  enact  laws  for  the  purpose 
of  applying  the  constitution,  and  to  decide  disputes 
between  the  States ;  but  it  had  no  administrative  offi- 
cers under  its  command,  the  federal  laws  being  exe- 
cuted entirely  by  the  officials  of  the  States.  Hence  the 
only  means  of  getting  its  orders  carried  out  in  case  a 
State  refused  to  obey  them  was  by  the  process  known 
as  federal  execution,  which  meant  that  the  Diet  called 
on  one  or  more  members  of  the  Confederation  to  at- 
tack the  recalcitrant  State,  and  by  invading  its  territo- 
ries to  compel  submission.  The  procedure  in  the  Diet 
was  a  complicated  one.  For  ordinary  matters  it  acted 
by  sections  called  curice,  when  the  eleven  largest 
States  had  one  vote  apiece,  the  other  twenty-eight 
being  combined  into  six  groups  each  of  which  had  a 
single  vote.  For  constitutional  questions,  on  the  other 
hand,  and  those  relating  to  peace  and  war,  the  Diet 
proceeded  in  plenum,  and  in  that  case  each  of  the 
smaller  States  had  one  vote,  while  the  fourteen  largest 
had  two,  three,  or  four  votes  apiece.1  This  distribution 
of  votes  was  by  no  means  in  proportion  to  population, 
for  the  largest  States  were  much  more  than  four  times 
as  big  as  the  smallest,  but  it  was  a  distinct  recognition 
of  an  inequality  of  rights  on  the  part  of  the  States, 
and  as  such  it  still  retains  an  especial  importance 
because  the  arrangement  of  the  votes  in  the  plenum 
has  continued  almost  unchanged  in  one  of  the  chief 
organs  of  the  Empire  to-day.  It  must  not  be  supposed, 

1  Six  of  the  States  had  four  votes,  five  had  three,  three  had  two,  and 
twenty-five  had  one. 


168  GERMANY. 

however,  that  the  influence  of  the  States  in  the  Diet 
was  determined  by  the  number  of  their  votes,  for 
Austria,  which  had  a  permanent  right  to  the  presi- 
dency of  the  Assembly,  and  Prussia,  which  had  a  per- 
manent right  to  the  vice-presidency,  exercised  in  fact 
a  controlling  authority.  When  these  two  great  powers 
agreed  they  had  their  own  way ;  when  they  disagreed, 
which  often  happened,  the  opinion  of  Austria  usually 
prevailed. 

The  wars  of  Napoleon  did  a  great  deal  more  for 
Failure  of  Germany  than  to  suppress  petty  principal- 
attempt6^  *ties  and  giye  rise  *°  a  clumsy  confederation, 
many  in*"  They  awakened  a  sentiment  of  German  na- 
tionality. At  first  this  was  only  a  sentiment, 
and  for  a  long  period  it  had  no  practical  results.  It 
was  especially  strong  among  the  Liberals,  and  grew 
stronger  as  time  went  on  ;  but  under  the  reaction  that 
followed  the  overthrow  of  Napoleon,  the  Liberals  had 
little  influence,  until  the  convulsions  of  1848  and  1849 
brought  them  to  the  front.  At  this  time  they  tried 
hard  to  bring  about  a  national  union  of  Germany,  but 
they  were  sadly  hampered  by  their  theoretical  views 
and  their  want  of  political  experience.  Their  aim  was 
a  German  state  constructed  on  an  ideal  model,  and 
they  lacked  the  quality  which  is  essential  to  real  states- 
manship,—  the  power  to  distinguish  the  elements  in 
the  existing  order  of  things  which  have  a  solid  basis, 
to  seize  upon  these,  and  adapt  them  to  the  end  in  view. 
Hence  their  efforts  expended  themselves  in  declamation 
and  academic  discussion,  and  came  to  nothing.  In 
May,  1848,  they  succeeded  in  bringing  together  at 


LIBERAL  MOVEMENTS  OF  1848.  169 

Frankfort  a  National  German  Parliament  elected  by 
universal  suffrage,  and  if  this  body  had  proposed 
quickly  any  rational  plan  for  a  union  of  Germany,  the 
chances  of  its  adoption  would  have  been  very  good, 
for  every  government  in  the  country  had  been  forced 
to  give  way  before  the  fierce  onslaught  of  the  Liberal 
movement.  But  unfortunately  more  than  four  months 
of  precious  time  were  consumed  in  debating  the  pri- 
mary rights  of  the  citizen,  and  when  these  were  finally 
disposed  of  the  tide  was  beginning  to  ebb.  At  last, 
in  March,  1849,  a  constitution  was  agreed  upon,  and 
the  imperial  crown  was  tendered  to  the  King  of  Prus- 
sia ;  but  the  offer  came  too  late.  Had  it  been  made 
in  the  preceding  summer  it  might  have  been  accepted, 
but  now  the  revolution  had  spent  its  force.  Austria, 
at  first  paralyzed  by  insurrection,  had  now  recovered 
from  the  shock,  was  rapidly  putting  down  her  rebel- 
lious subjects,  and  under  the  able  leadership  of  Prince 
Schwartzenberg  was  determined  to  prevent  any  re- 
organization of  Germany  which  would  diminish  her 
influence.  After  a  feeble  struggle  Prussia  yielded 
to  her  more  determined  rival,  the  revolutionary  move- 
ment came  to  an  end,  and  the  old  Confederation  was 
restored. 

Again  a  period  of  reaction  set  in,  which  lasted  about 
ten  years,  when  Germany  was  thrilled  by  the 
events  in  Italy,  and  the  Liberals  again  be- 
came  powerful.     Whether   they  would   have  avoided 
their  former  mistakes  and  succeeded  better  it  is  im- 
possible to   say,  for  just  at  this  time  there  appeared 
upon  the  scene  a  man  who  was  destined  to  stamp  his 


170  GERMANY. 

will  on  Germany,  and  change  the  whole  face  of  Euro- 
pean politics.  That  man  was  von  Bismarck.  He  be- 
longed to  the  lesser  Prussian  nobility,  which  is  the 
most  conservative  class  in  the  race ;  but  he  was  of  far 
too  large  a  calibre  to  be  bound  down  by  traditional 
prejudices;  and  indeed  he  had  already  formed  very 
decided  opinions  of  his  own  on  the  subject  of  German 
unity.  He  had  served  as  a  representative  of  Prussia 
at  the  Diet,  and  had  learned  that  a  German  nation 
was  impossible  so  long  as  the  two  great  powers  — 
Austria  and  Prussia  —  were  contending  for  a  mas- 
tery. He  saw  that  the  first  step  must  be  the  forcible 
expulsion  of  Austria  from  all  share  in  German  politics, 
and  he  believed  that  union  could  never  be  brought 
about  by  argument,  that  the  Germans  could  not  be 
persuaded,  but  must  be  compelled  to  unite,  that  the 
work  must  be  done,  as  he  expressed  it,  by  blood  and 
iron. 

An  important  advance  towards  closer  relations  be- 
tween the  States  had,  indeed,  been  made  long  ago  by 
the  creation  of  the  Zollverein  or  customs  union. 
This  had  been  founded  by  Prussia  in  the  early  part 
of  the  century,  and  had  gradually  been  extended  until 
it  included  almost  all  the  German  States,  except  Aus- 
tria, which  had  been  jealously  excluded  by  the  Prus- 
sian statesmen ;  but  valuable  as  the  Zollverein  was 
in  teaching  the  people  their  common  interests,  Bis- 
marck was  no  doubt  right  in  thinking  that  no  further 
progress  could  be  expected  without  the  use  of  force. 
Now  it  was  precisely  on  this  point  that  his  methods 
differed  from  those  of  the  Liberals,  for  war  formed  no 


BISMARCK  AND  THE  WAR  OF  1866.  171 

part  of  their  programme,  and  for  that  very  reason  they 
were  unable  to  understand  his   policy.     In 
1859  they  had  obtained  a  majority  in  the 


lower  house  of  the  Prussian  Parliament,  and 
had  very  soon  become  involved  in  a  quarrel  with  King 
William  over  the  reorganization  of  the  army,  on  which 
he  had  set  his  heart.1  In  1862  the  King  turned  to 
Bismarck  and  made  him  the  President  of  the  Council. 
Bismarck  submitted  to  the  chamber  a  budget  contain- 
ing the  appropriations  for  the  military  changes,  and 
when  the  chamber  refused  to  pass  it  he  withdrew  it, 
and  governed  without  any  budget  at  all.  This  he  was 
enabled  to  do,  because  the  taxes  were  collected  under 
standing  laws  which  required  no  reenactment,  and  in 
fact  could  not  be  changed  without  the  consent  of  the 
crown  ;  and  because  a  doctrine  was  developed  that  in 
case  the  King  and  the  two  houses  were  unable  to 
agree  upon  appropriations,  the  King  was  entitled  to 
make  all  those  expenditures  which  were  necessary  in 
order  to  carry  on  the  government  in  accordance  with 
the  laws  regulating  the  various  branches  of  the  admin- 
istration. The  Liberals  were  furious  at  this  budget- 
less  rule,  but  Bismarck  proceeded  in  spite  of  them. 
He  persuaded  Austria  to  join  Prussia  in  wresting  the 
duchies  of  Schleswig  and  Holstein  from  Denmark  in 
1864,  and  then  contrived  to  quarrel  with  her  about 
the  disposition  to  be  made  of  them.  The  majority  in 
the  German  Diet  sided  with  Austria,  and  ordered  the 

1  William  became  Regent  on  Oct.  7,  1858,  and  on  the  death  of  his 
brother  Frederick  William  IV.,  on  January  2,  1861,  he  became  King. 


172  GERMANY. 

troops  of  the  Confederation  mobilized  against  Prussia. 
The  war  of    Then   followed   the   war   of    1866,  and   the 
crushing  defeat  of  Austria  and  the  smaller 
German  States  that  took  her  part. 

Bismarck  had  originally  intended  to  compel  all  the 
Prussian  States  except  Austria  to  form  a  federal  union, 
annexations  but  ^  intervention  of  Napoleon  III  forced 
manConfed-  h™  to  abandon  the  plan,  and  limit  the  Con- 
federation to  the  country,  north  of  the  river 
Main.1  He  therefore  determined  as  a  compensation  to 
increase  the  direct  strength  of  Prussia  by  annexing  the 
States  that  had  fought  against  her.2  Hanover,  Electo- 
ral Hesse,3  Nassau,  and  Frankfort,  besides  Schles- 
wig-Holstein,  were  accordingly  incorporated  in  Prussia, 
while  with  the  other  States  north  of  the  Main  a  new  fed- 
eral union  was  formed  under  the  name  of  the  North 
German  Confederation.4  This  had  for  its  president 
the  Prussian  King ;  and  for  its  legislature  two  cham- 
bers, —  one  the  Reichstag,  a  popular  assembly  elected 
by  universal  suffrage,  and  the  other  the  Bundesrath, 
or  federal  council,  which  was  copied  from  the  old 

1  Luxemburg  and  Limburg,  which  belonged  to  Holland,  had  been  a 
part  of  the  old  Confederation,  but  were  allowed  to  drop  out  at  this  time, 
and  were  not  included  in  the  reorganization  of  Germany.     This  was  true 
also  of  the  tiny  principality  of  Lichtenstein  in  the  south. 

2  Von  Sybel,  Begrundung  des  Deutschen  Reiches,  book  xix.  ch.  ii. 

3  Also  called  Hesse-Cassel  to  distinguish  it  from  Hesse-Darmstadt  or 
grand-ducal  Hesse,  which,  being  the  only  Hesse  remaining  in  existence 
as  a  separate  State,  is  hereinafter  called  simply  Hesse. 

4  The  constitution  of  the  Confederation  was  first  agreed  upon  by  the 
governments  of  the  several  States,  then  accepted  with  slight  modifica- 
tions by  a  National  Assembly  elected  by  universal  suffrage  for  the  pur- 
pose, and  finally  ratified  by  the  legislatures  of  the  States. 


THE  NORTH  GERMAN  CONFEDERATION.     173 

Diet,  and  composed  in  the  same  way  of  the  plenipo- 
tentiaries of  the  different  States,  but  was  endowed 
with  peculiar  and  extensive  powers.  Austria  was  ex- 
cluded from  all  participation  in  German  politics ;  while 
the  four  States  south  of  the  Main  —  Bavaria,  Wurtem- 
berg,  Baden,  and  Hesse1 — became  independent,  and 
were  expressly  left  at  liberty  to  form  a  separate  union 
among  themselves.  As  a  matter  of  fact,  they  made 
offensive  and  defensive  alliances  with  the  Confeder- 
ation, and  formed  with  it  a  Zollverein  or  customs 
union,  whose  organs  were  the  two  chambers  of  the 
Confederation  reinforced  by  representatives  from  the 
southern  States.  Every  one  felt  that  the  union  of 
Germany  was  incomplete  so  long  as  these  States  were 
not  a  part  of  it ;  but  Bavaria  and  Wurtemberg  were 
reluctant  to  surrender  their  independence ;  and  the 
enthusiasm  aroused  by  the  war  with  France  in  1870 
was  required  to  raise  the  sentiment  for  German 
nationality  to  such  a  pitch  as  to  sweep  them  into  line. 
Even  then  they  demanded  and  obtained  special  privi- 
leges as  the  price  of  their  adhesion;  but  at  last  all 
the  difficulties  were  arranged,  and  in  the  autumn  of 
1870  treaties  were  made  with  the  four  southern  States 
whereby  they  joined  the  union.  The  name  of  the 
Confederation  was  changed  at  the  same  time  to  that 
of  "German  Empire,"  the  president  being  The  German 
given  the  title  of  Emperor ;  and  in  the  course  Empire- 
of  the  following  winter  the  changes  and  additions 

1  This  is  Hesse-Darmstadt.  It  lay  on  both  sides  of  the  Main,  but 
the  part  on  the  north  of  that  river  was  already  included  in  the  North 
German  Confederation. 

VOL.   I 


174  GERMANY. 

entailed  by  these  treaties  were  embodied  in  a  new  draft 
of  the  constitution.1 

The  constitution  has  nothing  about  it  that  is  abstract 
Practical  or  ideal.  It  was  drawn  up  by  a  man  of 
ilTc^u-0*  affairs  who  knew  precisely  what  he  wanted, 
and  understood  very  well  the  limitations  im- 
posed upon  him,  and  the  concessions  he  was  obliged  to 
make  to  the  existing  order  of  things.  His  prime  object 
was  to  create  a  powerful  military  state,  and  hence,  as 
has  been  pointed  out,  the  articles  on  most  subjects  are 
comparatively  meagre,  but  those  on  the  army,  the  navy, 
and  the  revenue  are  drawn  up  with  a  minuteness 
befitting  the  by-laws  of  a  commercial  company.2 

Before  proceeding  to  a  description  of  the  organs  of 

1  Cf.   Laband,   Deutsches   StaatsrecJit,  2d  ed.  ch.   i.       In  1873   three 
amendments  were  made  in  this  instrument.     The  first  (that  of  Feb.  25) 
abolished  the  provision  limiting  the  right  to  vote  in  the  Reichstag,  on 
those  matters  which  by  the  constitution  are  not  common  to  the  whole 
Empire,  to   the    representatives    of    the    States   affected.     The   second 
(that  of  March  3)  put  the  lighthouses,  buoys,  etc.,  along  the  coast  under 
the  control  of  the  federal  government ;  and  the  third  (that  of  Dec.  20) 
extended  the  legislative  power  of  the  Empire  over  the  whole  field  of  civil 
and  criminal  law.     It  had  previously  covered  contracts,  commercial  law, 
and  criminal  law.     Except  for  a  change  in  the  term  of  the  Reichstag  in 
1888  from  three  to  five  years,  the  constitution  has  remained  unaltered 
since  that  time,  but  substantial  changes  in  the  fundamental  law  of  the 
Empire  have   been   made  without   a   formal   modification   of   the  text. 
(See  Laband,  vol.  i.  pp.  48-49,  51.)     Some  of  the  German  jurists  main- 
tain that  such  a  practice  is  wrong  (von  Ronne,  Staatsrecht  des  Deutschen 
Reiches,  2d  ed.  pp.  31-34;  Meyer,  Lehrbuch  des  Deutschen  Staattrechts, 
p.  416) ;  others  that  it  is  quite  proper,  provided  the  majority  required  in 
the  Bundesrath  for  a  formal  amendment  of  the  constitution   is  in  fact 
obtained.    (Laband,  vol.  i.  pp.  545^49;  Arndt,  Verfassung  des  Deutschen 
Reiches,  pp.  290-91.)     For  the  method  of  amending  the  constitution,  see 
pages  246,  250-51,  infra. 

2  Lebon,  Etudes  sur  I'Allemagne  Politique,  Introd.,  p.  iii. 


THE  IMPERIAL  CONSTITUTION.  175 

the  state,  it  will  be  worth  while  to  examine  the  nature 
of  the  Confederation.  We  are  in  the  habit  of 
speaking  of  the  German  Empire  as  a  federal  the  Confed- 
government,  and  rightly  ;  but  we  must  bear 
in  mind  that  it  departs  essentially  from  the  type  which 
we  commonly  associate  with  that  term,  and  which  is 
embodied  in  our  own  constitution.  We  con-  Lar&e  le&ia_ 
ceive  of  a  federal  system  as  one  in  which  there  gj^f  e^n- 
is  a  division  of  powers  between  the  central  tlveP°wers- 
government  and  the  States,  according  to  subjects,  so 
that  in  those  matters  which  fall  within  the  sphere  of 
federal  control  the  central  government  not  only  makes 
the  laws,  but  executes  them  by  means  of  its  own 
officials.  Thus  Congress  enacts  a  tariff;  the  United 
States  custom  house  collects  the  duties ;  and  the  fed- 
eral courts  decide  the  questions  that  arise  under  the 
law.  But  all  this  is  very  different  in  Germany.  There 
the  legislative  power  of  the  central  government  is  far 
more  extensive  than  in  this  country,  for  it  includes 
almost  everything  that  is  placed  under  the  control  of 
Congress  and  many  other  matters  besides.  In  addition 
to  such  subjects  as  customs  duties  and  taypftj  the- army 
and  navy,  the  consular  service,  and  the  protection  of 
foreign  commerce,  which  are  obviously  essential,  the 
list  comprises  many  matters  of  domestic  legislation.  It 
covers  not  only  the  posts  and  telegraphs,1  transporta- 
tion on  streams  running  through  more  than  one  State, 
and  extraditions  between  the  States,  but  also  in  general 
terms  railroads,2  roads  and  canals,  citizenship,  travel, 

1  Except  in  Bavaria  and  Wurtemberg. 

2  Except  in  Bavaria. 


176  GERMANY. 

change  of  residence,  and  the  carrying  on  of  trades, 
also  the  regulation  of  weights  and  measures,  of  coinage 
and  paper  money,  and  of  banking,  patents,  copyrights, 
and  of  medical  and  veterinary  police.  Moreover,  it 
includes  the  regulation  of  the  press  and  associations, 
and  finally  the  whole  domain  of  ordinary  civil  and 
criminal  law  and  of  judicial  proceedings.  All  these 
things  are  declared  subject  to  imperial  legislation  and 
supervision.1 

The  administrative  power  of  the  Empire,  on  the  other 
hand,  is  very  small,  the  federal  laws  being  carried  out 
in  the  main  by  the  'officers  of  the  States  as  under  the 
Confederation  of  1815.  Except,  indeed,  for  foreign 
affairs,  the  navy,  and  to  some  extent  the  army  and  the 
postal  and  telegraphic  service,  the  executive  functions 
of  the  Empire  are  limited  for  the  most  part  to  the 
laying  down  of  general  regulations,  and  a  supervision 
of  their  execution  by  the  several  States.2  Thus  the 
federal  government  can  enact  a  tariff,  make  regula- 
tions which  shall  govern  the  custom-house  officers,  and 
appoint  inspectors  to  see  that  they  are  carried  out ;  but 
the  duties  are  actually  collected  by  state  officials.3  One 

1  Art.  4  of  the  constitution  and  the  amendment  of  Dec.  20,  1873. 

2  See  Laband,  §  66.     In  the  case  of  the  army  (Const.  Arts.  63-66)  and 
the  posts  and  telegraphs   (Art.  50),  the  highest  officers  are  appointed  by 
the  Emperor,  who   gives  them  their  orders,  while  the  subordinates  are 
appointed  by  the  States. 

8  As  a  rule  the  whole  net  revenue  flows  into  the  imperial  treasury,  but 
by  the  tariff  act  of  1879  the  net  revenue  from  customs  duties  above  one 
hundred  and  thirty  million  marks  is  divided  among  the  States  in  propor- 
tion to  their  population.  In  case  the  receipts  of  the  Empire  are  not  equal 
to  its  expenses,  the  deficiency  is  covered  by  means  of  contributions  called 
Matricularbcitrage  assessed  on  the  different  States  in  proportion  to  their 


NATURE  OF  THE  FEDERAL  UNION.  177 

naturally  asks  what  happens  if  a  State  refuses  or  fails 
to  carry  out  a  federal  law.  The  matter  is  reported  to 
the  Bundesrath,  which  decides  any  controversy  about 
the  interpretation  of  the  law.1  But  suppose  the  State 
persists  in  its  refusal  to  administer  the  law,  what  can 
the  federal  government  do  ?  It  cannot  give  effect  to 
the  law  itself,  nor  has  it  any  officials  for  the  purpose. 
Its  only  resource  is  federal  execution,  —  that  is,  an 
armed  attack  on  the  delinquent  State,  —  which  can  be 
ordered  by  the  Bundesrath,  and  is  carried  out  by  the 
Emperor.2  This  last  resort  has  never  been  used,  nor  is 
it  likely  to  be,  because  the  Emperor  is  also  the  King  of 
Prussia,  and  Prussia  alone  is  not  only  larger  than  any 
other  State,  but  larger  than  all  the  rest  put  together. 
Execution  against  Prussia  is  therefore  doubly  out  of 
the  question ;  and  any  other  State  would  be  so  easily 
overpowered  that  it  is  certain  to  submit,  rather  than 
provoke  an  appeal  to  force. 

Another  conception  that  we  associate  with  federal 
government  is  an  equality  of  rights  among  the  mem- 
population.  (Const.  Art.  70,  and  see  Laband,  §  126.)  This  was  originally 
intended  to  be  a  subsidiary  and  exceptional  source  of  revenue,  but  owing 
to  the  quarrel  between  Bismarck  and  the  Reichstag  on  the  subject  of 
federal  taxation,  the  Matricularbeitrage  became  large  and  permanent. 
(Cf.  Lebon,  Allemagne,  p.  106  et  seq.)  Under  the  present  system  the 
excess  of  customs  duties  is  paid  to  the  States,  and  returned  by  them  as 
contributions,  —  a  practice  established  in  order  to  preserve  the  control  of 
the  Reichstag  over  the  imperial  revenues,  for  the  assessments  upon  the 
States  require  a  vote  of  that  body,  whereas  the  customs  duties  once  voted 
can  be  collected  without  further  authorization,  and  the  tariff  cannot  be 
repealed  without  the  consent  of  the  Bundesrath,  which  for  this  purpose 
is  entirely  subject  to  the  will  of  the  Emperor.  See  page  247,  infra. 

1  Const.  Art.  7,  §  3. 

s  Const.  Art.  19,  and  see  Laband,  vol.  i.  pp.  105-6. 


178  GERMANY. 

bers.  But  in  the  German  Empire  all  is  inequality.  It 
Inequality  would,  indeed,  have  been  impossible  to  make 
afnon'gthe  a  federation  on  really  equal  terms  between 
members.  ft  n^^  of  States,  one  of  which  contained 
three  fifths  of  the  total  population,  while  the  other 
twenty-four  contained  altogether  only  two  fifths.  The 
compact  could  not  fail  to  resemble  that  between  the 
lion  and  the  fox,  or  rather  a  compact  between  a  lion, 
Privileges  of  half.  a  dozen  foxes,  and  a  score  of  mice.  The 

larger  States  are  accorded  all  sorts  of  privi- 
leges, and  so  much  of  the  lion's  share  of  these  falls  to 
Prussia  that  it  is  hardly  too  much  to  say  that  she  rules 
Germany  with  the  advice  and  assistance  of  the  other 
States.  In  the  first  place  she  has  a  perpetual  right  to 
have  her  King  the  Emperor  of  Germany.1  Secondly, 

amendments  to   the   constitution  —  although 

Under  the  .    .  ,  ,. 

constitu-  requiring  only  an  ordinary  majority  vote  in 
the  Reichstag  —  are  defeated  in  the  Bundes- 
rath  if  fourteen  negative  votes  are  thrown  against  them, 
and  as  Prussia  has  seventeen  votes  in  that  body,  she 
has  an  absolute  veto  on  all  changes  of  the  constitution.2 
Besides  this,  it  is  expressly  provided  that  in  the  case  of 
all  bills  relating  to  the  army,  the  navy,  the  customs 

1  Const.  Art.  11. 

2  Const.  Art.  78.     In  the  North  German  Confederation  a  two  thirds 
vote  in  the  Bundesrath  was  necessary  for  a  change  in  the  constitution, 
but  when  the  South  German  States  were  admitted,  Prussia  had  no  longer 
a  third  of  the  delegates,  and  in  order  to  preserve  her  veto  the  proportion 
required  was  increased  to  three  quarters.     Finally  at  the   instance  of 
Bavaria,  which  wanted  to  enlarge  the  power  of  the  States  of  the  second 
size,  it  was  agreed   that  fourteen  negative  votes  should  be  enough  to 
defeat  an  amendment  to  the  constitution.      Arndt,  p.  290 ;  Robinson, 
The  German  Bundesrath,  p.  40. 


PRIVILEGES  OF  PRUSSIA.  179 

duties,  or  the  excises,  and  in  the  case  of  all  proposals 
to  revise  the  administrative  regulations  for  collecting 
the  revenue,  the  vote  of  Prussia  in  the  Bundesrath  is 
decisive  if  cast  in  favor  of  maintaining  the  existing 
institutions.1  In  other  words,  Prussia  has  a  veto  on  all 
measures  for  making  changes  in  the  army,  the  navy, 
or  the  taxes.  She  has  also  the  casting  vote  in  case  of  a 
tie  in  the  Bundesrath,2  and  the  chairmanship  of  all  the 
standing  committees  of  that  body.3 

These  are  Prussia's  constitutional  privileges ;  but  Sie 
has  others  obtained  by  private  agreement  with 
her  smaller  partners :  for  the  several  States  are  ciai  conven- 

,  .  .  tionswith 

at  liberty  to  make  conventions  or  treaties  with  the  other 

*  States. 

each  other  in  regard  to  the  affairs  that  remain 

subject  to  their  control.4     When  the  North   German 

Confederation  was  formed,  universal  military 

i  The  army. 

service  and  a  uniform  organization  like  that 
of  Prussia  were  introduced  into  all  the  States,  but  the 
army  was  not  made  exclusively  a  national  or  left  en- 
tirely a   state  institution.5     The  constitution  provides 
that  the  military  laws  shall  be  made  by  the  Empire,6  and 

1  Const.  Arts.  5,  35,  and  37.  2  Const.  Art.  7. 

8  Const.  Art.  8  ;  Laband,  vol  i.  p.  264.  Except  the  committee  on 
foreign  affairs,  where,  as  will  be  explained  hereafter,  it  would  be  of  no 
use  to  her. 

4  Laband,  §  63.  To  some  extent  the  States  are  at  liberty  to  make 
separate  conventions  with  foreign  powers,  and  they  have  a  right  to  send 
their  own  representatives  to  foreign  courts.  Laband,  §  71. 

6  Const.  Arts.  57-68.  The  last  eight  of  these  articles  do  not  apply  to 
Bavaria,  and  only  partially  to  Wurtemberg.  See  page  250,  infra.  The 
expense  of  maintaining  the  army  is  borne  by  the  Empire.  Unlike  the 
army,  the  navy  is  a  purely  national  institution.  Art.  53. 

*  The  double  position  of  the  Prussian  monarch  comes  out  curiously 
here,  for  the  constitution  provides  :  first,  that  the  military  laws  and  regu- 


180  GERMANY. 

declares  that  the  forces  of  the  country  shall  be  a  single 
army  under  the  command  of  the  Emperor,  whose  orders 
they  are  bound  to  obey.  It  gives  him  a  right  to  inspect 
and  dispose  of  the  troops,  and  to  appoint  all  officers 
whose  command  includes  the  entire  contingent  of  a 
State.  It  provides  also  that  the  selection  of  the  gen- 
erals shall  be  subject  to  his  approval,  but  it  leaves  to 
the  States  the  appointment  of  all  inferior  officers,  and 
the  management  of  their  troops  in  other  respects.  Now 
these  reserved  rights  were  of  little  value,  and  all  but 
three  of  the  States  transferred  them  to  Prussia,  chiefly 
in  consideration  of  an  agreement  on  the  part  of  the 
Emperor  not  to  remove  the  troops  from  their  own  ter- 
ritory except  in  case  of  actual  necessity.  Thus  the 
contingents  of  these  States  are  recruited,  drilled,  and 
commanded  by  Prussia,  and  form,  in  short,  an  integral 
part  of  her  army.1 

A  number  of  conventions  of  a  similiar  character,  af- 
fecting other  public  matters,  such  as  the  pos- 

Convention  ,  .  ,     ,         ..,..  «      , 

with  Wai-      tal  service  and  the  jurisdiction  ot  the  courts, 
have  been  concluded  between  the  States ;  but 

lations  of  Prussia  shall  be  in  force  throughout  the  Empire  ;  second,  that 
thereafter  a  comprehensive  imperial  military  law  shall  be  enacted; 
and  third  that  any  future  general  orders  of  the  Prussian  army  shall 
be  communicated  by  the  military  committee  of  the  Bundesrath  to  the 
commanders  of  the  other  contingents  for  appropriate  imitation. 

1  Some  of  the  States  transferred  all  their  rights  (Baden  with  a  pro- 
vision that  her  troops  should  form  a  separate  corps)  ;  others  retained 
certain  rights,  mainly  of  an  honorary  nature,  but  agreed  that  their 
troops  should  be  united  with  the  Prussian  army,  and  that  Prussia  should 
appoint  the  officers.  Only  Bavaria,  Saxony,  and  Wurtcmberg  still  exer- 
cise the  military  functions  reserved  to  them  by  the  constitution.  Cf. 
Laband,  §  94,  iii. ;  Schulze,  Lehrbuch  des  Deutschen  Staatsrechts,  §  335; 
Meyer,  Lehrbuch,  §  197. 


PRIVILEGES  OF  PRUSSIA.  181 

the  most  comprehensive  compact  of  all  was  made  by 
Waldeck.  The  ruler  of  this  little  principality  was 
crippled  with  debts,  and  unable  to  raise  the  money 
required  for  the  reorganization  of  his  army.  So  he 
sold  his  governmental  rights  as  a  whole  to  the  King 
of  Prussia,  retired  from  business,  and  went  to  Italy 
to  live  upon  his  income,  while  the  Prussian  govern- 
ment, having  bought  the  good-will  of  his  trade,  pro- 
ceeded to  carry  it  on  as  his  successor.  There  is  some- 
thing decidedly  comical  in  treating  the  right  to  govern 
a  community  as  a  marketable  commodity,  to  be  bought 
and  sold  for  cash;  but  to  Bismarck  the  matter  pre- 
sented itself  as  a  perfectly  natural  business  transac- 
tion, and  in  fact  the  contract  bears  a  strong  resem- 
blance to  the  lease  of  a  small  American  railroad  to  a 
larger  one. 

Such  are  the  special  privileges  of  Prussia.     Those 
reserved  to  the  other  States  are  far  less  exten- 

T*  TT  i     Privileges 

sive.      By  the   constitution    Hamburg    and  of  the  other 

T>  11-1  •  States. 

Bremen  had  a  right  to  remain  free  ports,  out- 
side of  the  operation  of  the  tariff  laws ; 1  but  and  Bre- 
both  of  them  have  now  surrendered  this  privi- 
lege.2    The  other  special  rights  are  mostly  enjoyed  by 
the  southern  States,  and  were  given  to  them  as  an  in- 
ducement to  join  the  Confederation.     Thus   Bavaria, 

1  Const.  Art.  34. 

2  The  treaty  for  this  purpose  was  made  with  Hamburg  in  1881,  and 
went  into  effect  Oct.  1,  1888.    That  with  Bremen  was  made  in  1885. 
For  an  account  of  these  treaties  and  the  way  they  were  brought  about, 
see  Blum,  Das  Deutsche  Reich  zur  Zeit  Bismarck's,  p.  360  et  seq. ;  Laband, 
vol.  ii.  pp.  901-4. 


182  GERMANY. 

Wurtemberg,  and  Baden  are  exempt  from  imperial  ex- 
Bavaria,  c^ses  on  ^ran(ly  and  beer,  and  have  a  right 
belaud  to  lav  excises  °f  their  own  on  these  articles.1 
Bavaria  and  Wurtemberg  have  their  own 
postal  and  telegraph  services,  which  are  subject  only  to 
general  imperial  laws.2  Except  for  the  principle  of 
universal  military  service,  and  the  agreement  to  con- 
form to  the  general  organization  of  the  imperial  army, 
Bavaria  has  in  time  of  peace  the  entire  charge  of  her 
own  troops,  the  Emperor  having  only  a  right  to  inspect 
them ;  while  Wurtemberg,  although  not  so  much  fa- 
vored as  this,  has  greater  military  privileges  than  the 
remaining  States.3  Bavaria  is  further  exempt  from 
imperial  legislation  in  regard  to  railroads,4  and  to  resi- 
dence and  settlement;5  and  finally,  by  the  constitu- 
tion or  by  military  convention,  Bavaria,  Saxony,  and 
Wurtemberg  have  a  right  to  seats  on  the  committees 
of  the  Bundesrath  on  foreign  affairs  and  on  the  army 
and  fortresses.6  In  order  to  guarantee  more  effectually 
these  privileges,  it  is  provided  that  they  shall  not  be 


1  Const.  Art.  35.     But  in  1887  they  gave  up  their  privileges  in  regard 
to  brandy.     See  Blum,  p.  532  ;  Laband,  vol.  ii.  pp.  920,  923-24. 

2  Const.  Art.  52. 

8  Treaties  of  Nov.  23,  1870,  with  Bavaria ;  and  Nov.  25,  1870,  with 
Wurtemberg ;  incorporated  in  the  constitution  by  a  reference  in  the  Ap- 
pendix to  Part  XI. 

4  Except  in  the  case  of  lines  that  have  a  strategic  importance.  Const. 
Art.  46. 

6  Const.  Art.  4,  §  1. 

6  Const.  Art.  8  ;  Laband,  vol.  i.  p.  113.  By  the  treaty  of  Nov.  23, 
1870  (Schlussprotokoll,  Art.  ix.),  Bavaria  has  a  right  to  preside  over  the 
Bundesrath  in  the  absence  of  Prussia,  but  as  this  never  happens,  the  privi- 
lege is  merely  honorary. 


PRIVILEGES  OF  THE  SMALLER  STATES.          183 

changed  without  the  consent  of  the  State  entitled  to 
them.1 

From  this  description  of  the  privileges  of  the  differ- 
ent States  it  is  evident  that  the  German  Em- 
pire is  very  far  from  being  a  federal  union  of 


the  kind  with  which  we  are  familiar.     It  is  old  Confed- 
rather  a  continuation   of   the  old   Germanic  modified 
Confederation,    with   the    centre    of    gravity 
shifted  from  the  States  to  the  central  government,  and 
the   preponderating    power   placed   in    the   hands    of 
Prussia,  —  the  other   large  States   retaining 
privileges  roughly  in  proportion  to  their  size.2 

1  Const.   Art.  78.     Meyer  (Lehrbuch,  p.  421)  and   Zorn  (Staatsrecht 
des  Deutschen  Reiches,  pp.  88-93)  think  this  provision  applies  only  to  the 
limitations  on  the  competence  of  the  Empire,  and  not  to  the  privileges 
given  to  the  several  States  in  the  organization  of  the  government,  such 
as  the  presidential  rights  of  Prussia,  the  allotment  of  the  votes  in  the 
Bundesrath,  the  seats  on  committees,  etc.     Their  opinion,  however,  is 
not  generally  accepted.      Laband,  vol.  i.  pp.  110-14  ;  Schulze,  §   249  ; 
v.  Ronne,  vol.  ii.  pp.  43-48.     It  is  universally  agreed  that  an  affirmative 
vote  in  the  Bundesrath  by  the  delegate  of  the  State  is  a  sufficient  consent 
by  that  State  to  a  law  affecting  its  privileges  so  far  as  the  Empire  is 
concerned  ;  but  there  is  a  difference  of  opinion  on  the  question  how  far 
the  ruler  of  the  State  is  bound,  or  can  be  bound,  by  state  law  to  consult 
his  parliament.      Laband,  vol.  i.  pp.  114-17  ;    Schulze,  bk.   ii.  p.   19  ; 
v.  Ronne,  vol.  ii.  pp.  36-43  ;  Meyer,  p.  422  ;  Zorn,  pp.  94-98. 

2  In  saying  this  I  am  speaking  only  of  the  political  structure  of  the 
government,  and  do  not  mean  to  touch  the  philosophical  question  whether 
the  sovereignty  has  or  has  not  been  transferred  from  the  States  to  the 
Empire.     This  point  has  been  the  subject  of  elaborate  argument,  and  in 
fact  the  same  juristic  questions  about  the  origin  and  nature  of  the  fed- 
eral  government  have   been   discussed  in   Germany  as  in  the   United 
States.     (For  a  reference  to  these  discussions  see  Laband,  vol.  i.  pp.  30— 
33,  52  et  seq.,  and  see  especially  Jellinek,  Die  Lehre  von  den  Staatenver- 
bindungen.)  Some  of  the  German  publicists  maintain  that  the  sovereignty 
resides  in  the  Bundesrath,  a  view  which,  as  Burgess  points  out  in  his 


184  GEKMANY. 

Its  chief  organ  of  government  is  still  the  old  Diet,  re- 
named the  Bundesrath  or  Federal  Council,  to  which 
have  been  added  on  one  side  an  Emperor,  who  is  com- 
mander-in-ehief  of  the  forces,  and  represents  the  Em- 
pire in  its  relation  with  foreign  powers ;  and,  on  the 
other,  an  elected  chamber,  called  the  Reichstag,  created 
for  the  sake  of  stimulating  national  sentiment  and 
enlisting  popular  support  as  against  the  local  and  dy- 
nastic influences  which  have  free  play  in  the  Bundes- 
rath. Let  us  consider  each  of  these  organs  in  detail. 

The  Reichstag  is  elected   for  five  years  by   direct 
The  universal   suffrage   and  secret  ballot.1      The 

Reichstag,  voters  must  be  twenty-five  years  old,  and  not 
in  active  military  service,  paupers,  or  otherwise  disquali- 
its  com  o-  fied.2  The  members  are  chosen  in  single  elec- 
sition.  toral  disjects  fixed  by  imperial  law.3  These 

had  originally  a  hundred  thousand  inhabitants  apiece,4 
but  they  have  not  been  revised  for  more  than  a  score 
of  years,  and  with  the  growth  of  the  large  cities  have 
gradually  become  very  unequal.  In  the  case  of  Berlin 
the  disproportion  is  enormous,  for  the  city  has  now 
nearly  two  million  and  a  half  inhabitants,  but  is  still  rep- 

Political  Science  (vol.  ii.  pp.  90-93)  is  somewhat  artificial.  For  those  who 
think  as  I  do,  that  sovereignty  is  not  in  its  nature  indivisible,  the  question 
loses  much  of  its  importance.  (Cf.  Essays  on  Government,  chapter  on  the 
Limits  of  Sovereignty.) 

1  Cf.  Laband,  §  34  ;  Const.  Arts.  20,  24.     Until  1888  the  period  was 
three  years. 

2  Wahlgesetz,  May  31,  1869,  §§  1-3.     Every  voter  who  has  been  a 
citizen  of  any  State  for  a  year  is  eligible  in  any  district  in  the  Empire 
without  regard  to  residence.     Soldiers  in  active  service,  though  not  al- 
lowed to  vote,  are  eligible,     (/c?.,  §  4.) 

8  Wahlgesetz,  §  6.  *  Except  in  the  smallest  States. 


THE  REICHSTAG.  185 

resented  by  only  six  members.  The  government,  how- 
ever, is  not  anxious  for  a  redistribution  of  seats,  be- 
cause Berlin  elects  Radicals  and  Socialists,  who  form 
a  troublesome  opposition,  —  a  tendency  which  is  also 
true  of  other  large  centres.  As  in  the  United  States, 
no  district  can  be  composed  of  parts  of  different  States, 
so  that  every  State,  however  small,  elects  at  least  one 
representative.  The  three  hundred  and  ninety-seven 
seats  are  in  fact  distributed  as  follows :  Prussia  has 
two  hundred  and  thirty-five,  or  about  three  fifths  of 
the  whole  number,  Bavaria  forty-eight,  Saxony  twenty- 
three,  Wurtemberg  seventeen,  Alsace-Lorraine  fifteen, 
Baden  fourteen,  Hesse  nine,  Mecklenburg-Schwerin  six, 
Saxe-Weimar  three,  Oldenburg  three,  Brunswick  three, 
Hamburg  three,  Saxe-Meiningen  two,  Saxe-Coburg- 
Gotha  two,  Anhalt  two,  and  all  the  rest  one  each.1  As 
regards  the  method  of  election  the  system  of  ballotage 
prevails ;  that  is,  an  absolute  majority  is  required  for 
election  on  the  first  ballot,  and  if  no  one  obtains  this, 
a  second  ballot  takes  place  which  is  confined  to  the 
two  candidates  who  have  received  the  largest  number 
of  votes.2 

Universal  suffrage  was  looked  upon  as  an   experi- 
ment of  a  somewhat  hazardous  character,  and  payment  of 
Bismarck  insisted  on  the  non-payment  of  the  members- 
members  of  the  Reichstag  as  a  safeguard.3     This  was 

1  Wahlgesetz,  §  5 ;  Const.  Art.  20  ;  Act  of  June  25,  1873  (Alsace- 
Lorraine),  §  3. 

2  Wahlgesetz,  §  12.     Lebon  (p.  82)  thinks  this  last  provision,  by  cut- 
ting out  all  the  candidates  but  the  two  highest  on  the  list,  favors  the 
government  and  hampers  the  free  expression  of  opinion. 

8  Const.  Art.  32. 


186  GERMANY. 

a  bone  of  contention  with  the  Liberals  for  many  years, 
—  the  Reichstag  having  repeatedly  passed  bills  for 
the  payment  of  members,  which  the  Bundesrath  until 
1906  rejected.1  The  absence  of  remuneration  has  not 
been  without  effect,  for  it  has  deterred  university  pro- 
fessors and  other  men  of  small  means,  usually  of  liberal 
views,  from  accepting  an  office  which  entails  the  expense 
of  a  long  residence  in  Berlin,  but  it  has  not  fulfilled 
the  predictions  that  were  made  either  by  its  foes  or  its 
friends,  for  it  has  not  caused  a  dearth  of  candidates, 
or  discouraged  the  presence  of  men  who  make  poli- 
tics their  occupation.  The  provision  has,  however,  a 
meaning  one  would  hardly  suspect.  In  1885,  when 
the  Socialist  representatives  were  paid  a  salary  by  their 
own  party,  Bismarck,  claiming  that  such  a  proceeding 
was  illegal,  caused  the  treasury  to  sue  them  for  the 
sums  of  money  they  had  received  in  this  way,  and, 
strange  to  say,  the  Imperial  Court  of  Appeal  sustained 
the  suits.  The  object  of  withholding  pay  from  the 
members  is,  of  course,  to  prevent  the  power  of  the 
poorer  classes  from  becoming  too  great ;  but  a  much 
more  effectual  means  to  the  same  end  is  the  habit  of 
holding  elections  on  working  days,  instead  of  holding 
them  on  Sundays,  as  is  done  in  France  and  most  of  the 
other  Catholic  countries. 

1  In  1906  a  measure  providing  for  the  payment  of  members  was  en- 
acted. Since  that  date  a  nominal  allowance  of  3000  marks  (about  $750) 
per  year  has  been  paid,  with  a  reduction  of  25  marks  for  each  day's  ab- 
sence. The  annual  allowance  is  hardly  large  enough  to  be  termed  a 
salary. 


THE  REICHSTAG.  187 

The  Reichstag  has  the  ordinary  privileges  of  a  legis- 
lative assembly,   electing  its  own  president. 

i  •  i  j   j     -j-  *i/   The com- 

making  its  own  rules,  and  deciding  upon  the  mittee  ays- 
validity  of  elections.1  Its  internal  organiza- 
tion conforms  to  the  pattern  generally  followed  in  con- 
tinental chambers.  At  the  beginning  of  each  session 
the  members  are  divided  by  lot  into  seven  Abthei- 
lungen  or  sections,  which  correspond  to  the  Bureaux 
of  the  French  Chambers,  but  differ  from  these  in  the 
important  respect  that  they  last  during  the  whole 
session,  instead  of  being  renewed  at  short  intervals. 
The  duties  of  the  sections  consist  in  making  a  prelimi- 
nary examination  of  the  validity  of  elections  to  the 
Reichstag,  and  in  the  choice  of  committees,  each  section 
electing  one  or  more  committee-men,  according  to  the 
importance  of  the  committee.2  As  in  France  and  Italy, 
however,  the  choice  by  the  sections  is  really  cut  and  dried 
beforehand.  It  is  in  fact  controlled  by  the  Senioren- 
Convent,  a  body  composed  of  the  leaders  of  the  dif- 
ferent parties,  who  determine  in  advance  the  number 
of  seats  on  the  committee  to  which  each  party  shall 
be  entitled.3  Bills  are  not  always  referred  to  a  com- 
mittee; but  it  is  noteworthy  that  the  more  advanced 
Liberals  have  constantly  urged  such  a  reference  in 
the  case  of  government  bills,  because  the  authoritative 
influence  of  the  ministers  is  thereby  diminished,  and 
greater  opportunity  is  given  for  criticism  and  amend- 

1  Const.  Art.  27. 

2  Laband,  vol.  ii.  pp.  327-29.     Unlike  the  French  Bureaux,  their  choice 
is  not  confined  to  members  of  their  own  section.     Lebon,  p.  88. 

8  Lebon,  Ib. ;  Dupriez,  vol.  i.  p.  526  ;  Laband,  vol.  i.  p.  328. 


188  GERMANY. 

ment ;  while  the  more  moderate  parties,  following  the 
lead  of  the  government,  have  often  preferred  an  imme- 
diate  discussion    of  important   measures   by   the   full 
house,  without  the  intervention  of  any  committee  at  all. 
The  powers  of  the  Reichstag  appear  very  great  on 
paper.     All  laws  require  its  consent,  and  so 
of  the          do  the  budget,  all  loans,  and  all  treaties  which 

Reichstag.        ..  PIT  •  i  •         i        i  • 

involve  matters  tailing  within  the  domain  of 
legislation.  It  has  a  right  to  initiate  legislation,  to  ask 
the  government  for  reports,  and  to  express  its  opinion 
on  the  management  of  affairs.1  In  reality,  however, 
its  powers  are  not  so  great  as  they  seem.  The  consti- 
tution provides,  for  example,  that  the  budget  shall  be 
annual,2  but  the  principal  revenue  laws  are  permanent, 
and  cannot  be  changed  without  the  consent  of  the 
Bundesrath,3  while  the  most  important  appropriation, 
that  for  the  army,  is  virtually  determined  by  the  law 
fixing  the  number  of  the  troops,  and  this  has  hitherto 
been  voted  for  a  number  of  years  at  a  time.4  The 
chief  function  of  the  Reichstag  is,  in  fact,  the  consid- 
eration of  bills  prepared  by  the  Chancellor  and  the 
Bundesrath.  These  it  criticises  and  amends  pretty 
freely ;  but  its  activity  is  rather  negative  than  positive, 
and  although  important  measures  have  occasionally 

*  Const.  Arts.  5,  11,  23,  69,  73  ;  Laband,  §  33. 

2  In  1867  Bismarck  wanted  triennial  sessions,  and  in  1888,  when  the 
term  of  the  Reichstag  was  changed  to  five  years,  he  wanted  the  sessions 
held  only  every  other  year. 

8  It  is  to  be  remembered,  moreover,  that  the  bulk  of  the  civil  adminis- 
tration is  in  the  hands  of  the  States,  which  provide  the  means  of  carrying 
it  on. 

4  In  1871,  for  three  years  ;  in  1874,  1880,  and  1887  for  seven  years ; 
and  since  1893  for  five  years. 


THE  REICHSTAG.  189 

been  passed  at  its  instigation,1  it  cannot  be  said  to 
direct  the  policy  of  the  state  either  in  legislation  or 
administration.2 

The  influence  of  the  Reichstag  is  also  diminished 
by  the  fact  that  it  can  be  dissolved  at  any  Theri  htof 
time  by  the  Bundesrath  with  the  consent  of  d*8801^0*- 
the  Emperor.3  In  most  constitutional  governments  at 
the  present  day  the  power  of  dissolution  is  the  com- 
plement of  the  responsibility  of  the  ministers,  and 
is  used,  at  least  in  theory,  to  ascertain  whether  the 
cabinet  possesses  the  confidence  of  the  nation.  But 
in  Germany  it  exists  without  any  such  responsibility, 
and  hence  is  simply  a  means  of  breaking  down  re- 
sistance in  the  Reichstag.  It  has,  indeed,  been  used 
for  this  purpose  on  three  memorable  occasions :  first, 
in  1878,  when  the  Reichstag  refused  to  pass  a  bill 
for  the  repression  of  agitation  by  the  Socialists ;  after- 
wards in  1887,  when  it  refused  to  pass  the  bill  fixing 
the  size  of  the  army  for  seven  years ;  and  again  in  1893, 
when  it  refused  to  sanction  changes  proposed  in  the 
military  system.  In  each  case  the  new  Reichstag  sup- 
ported the  plans  of  the  government,  and  thus  a  serious 
conflict  with  the  Chancellor  was  avoided,  and  the 

1  A  striking  example  of  this  was  the  amendment  to  Art.  4  of  the  con- 
stitution extending  the  competence  of  the  Empire  to  ordinary  civil  and 
criminal  law. 

2  Cf.  Lebon,  pp.  113-16.     The  debate  in  the  budget  is  used  as  an 
occasion  for   criticism   of   the   government,  and   for   the  expression  of 
opinion,  but  in  the  budget  itself  few  changes  are  made.     The  reductions 
have  little  importance,  while  the  rejection  of  an  appropriation  asked  for 
is  extremely  rare,  and  an  increase  is  almost  unknown.     Dnpriez,  vol.  i. 
pp.  643-44. 

8  Const.  Art.  24. 

VOL.  I. 


190  GERMANY. 

question    of   the   ultimate   authority   of   the   different 
organs  of  the  state  was  postponed. 

The  rules  of  the  Reichstag  provide  for  interpella- 
interpeiia-  ti°ns>  but  the  question  to  whom  these  shall 
be  addressed  involves  one  of  the  paradoxes, 
or  contradictions  between  theory  and  practice,  which 
are  common  in  the  government  of  the  Empire.  There 
is  no  imperial  cabinet,  and  the  Chancellor,  who  is  the 
only  minister,  has  no  right,  as  such,  to  sit  in  the 
Reichstag.  In  theory  he  comes  there  only  as  one  of 
the  delegates  to  the  Bundesrath,  —  all  whose  members 
have  the  privilege  of  being  present  in  the  Reichstag, 
where  a  special  bench  is  reserved  for  them.  They 
appear  as  the  representatives  of  the  united  governments 
of  Germany,  and  are  entitled  to  speak  whenever  they 
choose;  for  the  Bundesrath  is  not  only  a  collection 
of  delegates  from  the  governments  of  the  different 
States,  but  has  also  some  of  the  attributes  of  an  im- 
perial cabinet.  In  form,  therefore,  interpellations  are 
addressed  to  the  Bundesrath,  but  in  fact  they  are  com- 
municated to  the  Chancellor,  who  usually  answers  them 
himself,  or  allows  one  of  his  subordinates  to  do  so.  A 
debate  may  ensue  if  demanded  by  fifty  members,  but 
it  is  not  followed  by  an  order  of  the  day  expressing 
the  opinion  of  the  House,1  and,  indeed,  interpellations 
have  no  such  importance  as  in  France  and  Italy,  because 
the  parliamentary  system  does  not  exist ;  that  is,  the 

1  Lebon,  p.  105 ;  v.  Rb'nne,  p.  268.  A  resolution  can,  of  course,  be 
moved  in  accordance  with  the  ordinary  rules  of  procedure,  and  this  was 
done  on  the  occasion  of  the  expulsion  of  the  Poles  in  Jan.,  1886.  Blum, 
pp.  498-501.  Dupriez  (vol.  i.  p.  545)  comments  on  the  Polish  incident- 


THE  BUNDESRATH.  191 

Chancellor  does  not  resign  on  an  adverse  vote  of  the 
Reichstag,  nor  does  he  feel  obliged  to  conform  to  its 
wishes.  . 

Let  us  now  examine  more  closely  the  Bundesrath,  —    fX 
that  extraordinary  mixture  of  legislative  cham-  The  Bun_ 
ber,  executive  council,  court  of  appeal,  and  c 
permanent  assembly  of  diplomats.     It  is  the  most  thor- 
oughly native  feature  of  the  German  Empire,  and  has, 
therefore,  a  peculiar  vitality.     The  Bundesrath  is  com- 
posed of  delegates  appointed  by  the  princes  Ita  Comp08i_ 
of  the  States  and  the  senates  of  the  Free  tlon' 
Cities ; l  and  it  is  to  be  observed  that  Alsace-Lorraine, 
which  was  taken  from  France  in  1871,  is  not  strictly  a 
member  of  the  union,  but  only  Reichsland  or  imperial 
territory,  and  hence  has  no  right  to  a  representative 
in  the  Bundesrath,  although  as  a  part  of  the  empire 
it  elects  members  of  the  Reichstag.'    Its  position  is  in 
some  ways  analogous  to  that  of  one  of  our  Territories, 
while  the  other  parts  of  the  Empire  correspond  to  our 
States.     Curiously   enough,  Alsace-Lorraine    has   been 
allowed   since  1879  to  send  to  the  Bundesrath  dele- 
gates who,  like  the  representatives  of  the  Territories  in 
Congress,  can  debate,  but  cannot  vote.2 

The  seats  in  the  Bundesrath  are  distributed  among 
the  States  and  Cities  in  such  a  way  that  each  of  them 
is  entitled  to  the  same  number  of  votes  as  in  the 

1  Const.  Arts.  6-10. 

2  Laband,  vol.  i.  pp.  219-20.     In  the  law  of  1879,  as  originally  drawn 
up  by  Bismarck,  Alsace-Lorraine  was  entitled  to  ordinary  delegates  to 
the  Bundesrath  ;  but  that  body,  in  order  not  to  increase  the  seats  virtually 
controlled  by  the  King  of  Prussia,  insisted  that  they  should  have  no  vote. 
Blum,  pp.  635-36.     The  number  of  these  delegates  is  four. 


192  GERMANY. 

diet  of  the  old  Germanic  Confederation  when  that  body 
proceeded  in  plenum ;  except  that  Bavaria,  as  part 
of  the  inducement  to  join  the  Empire,  was  given  six 
delegates  instead  of  four,1  and  Prussia  obtained  those 
of  the  States  she  absorbed  in  1866.2 

There  are  in  all  fifty-eight  members,  of  which  Prussia 
has  seventeen,  Bavaria  six,  Saxony  and  Wurtemberg 
four  each,  Baden  and  Hesse  three  each,  Brunswick  and 
Mecklenburg-Schwerin  two  each,  and  the  remaining 
fourteen  States  and  three  Free  Cities  one  each.  But 
Prussia  has  really  three  votes  more,  because  the 
contract  for  the  government  of  Waldeck  already  men- 
tioned gave  her  the  vote  of  that  State,  and  in  1884-85 
she  caused  the  Duke  of  Cumberland  to  be  excluded 
from  the  succession  in  Brunswick,  got  a  Prussian 
prince  appointed  perpetual  regent,  and  thus  obtained 
the  virtual  control  of  these  two  votes  also;3  so  that 
she  has  in  reality  twenty  votes  out  of  the  fifty-eight. 
This,  of  course,  is  much  less  than  her  proportion  of  the 
population  ; 4  but  twenty  votes  in  the  same  hand  count 

1  She  had  six  votes  in  the  Bundesrath  of  the  Zollverein  from  1866 
to  1871. 

2  Laband,  vol.  i.  p.  220.   The  votes  acquired  by  Prussia  in  this  way  were 
those  of  Hanover,  4 ;  Hesse  Cassel,  3  ;  Holstein-Lauenburg,  3  ;  Nassau, 
2  ;  and  Frankfort,  1. 

8  The  Duke  was  excluded  because  as  son  and  heir  of  the  late  King  of 
Hanover  he  insisted  on  his  right  to  that  kingdom,  and  refused  to  acknow- 
ledge its  incorporation  in  Prussia.  His  sou,  who  married  the  Emperor's 
daughter,  has  recently  been  restored  to  the  dukedom. 

4  The  population  of  Germany  on  Dec.  1,  1890,  was  about  forty-nine 
millions,  of  which  Prussia  had  thirty  millions,  Bavaria  five  millions  and 
a  half,  Saxony  three  millions  and  a  half,  Wurtemberg  two  millions, 
Alsace-Lorraine  and  Baden  a  million  and  a  half  apiece,  Hesse  one  mil- 
lion, and  the  other  nineteen  States  together  four  millions. 


THE  BUNDESRATH.  193 

far  more  than  the  same  number  held  by  different 
States,  and  she  has  only  to  win  ten  additional  votes,  — 
those  of  Bavaria  and  Wurtemberg,  for  example,  or 
those  of  some  of  the  smaller  States,  —  in  order  to 
have  an  absolute  majority.  In  fact,  she  has  usually 
had  her  way,  although  on  several  notable  occasions  the 
other  States  have  combined  and  defeated  her.  This 
happened  in  1877,  when  the  seat  of  the  Imperial 
Court  of  Appeal  was  fixed  at  Leipsic  instead  of  Berlin 
as  she  desired ; 1  and  in  1876  on  the  more  important 
question  of  the  imperial  railroad  law.  At  that  time 
Bismarck  refrained  altogether  from  introducing  into 
the  Bundesrath  a  bill  for  the  purchase  of  railroads  by 
the  Empire,  knowing  that  it  would  be  defeated  by  the 
opposition  of  the  middle-sized  States,  although  the 
project  was  one  on  which  he  had  set  his  heart.2 
Again,  in  1879,  another  railroad  bill  was  killed  in  the 
Bundesrath  by  the  opposition  of  Bavaria,  Saxony,  and 
Wurtemberg,3  and  in  the  same  year  a  conference  of 
the  finance  ministers  of  the  States  refused  to  consent 
to  the  tobacco  monopoly.4 

The  members  of  the  Bundesrath  are  diplomats  rather 
than  senators.5  They  enjoy  at  Berlin  the  privileges  of 
foreign  ambassadors,  and  are  appointed  and  removed 

1  Cf.  Blum,  pp.  146^47.  The  vote  in  favor  of  Leipsic  was  thirty  to 
twenty-eight ;  and  it  is  noteworthy  that  if  Prussia  had  then  controlled 
the  votes  of  Brunswick  the  majority  would  have  been  the  other  way. 

a  Cf.  Blum,  pp.  165-68. 

3  Blum,  p.  345. 

4  Blum,  p.  312.    On  this  point,  however,  they  yielded  some  years  later. 

5  The  constitution  (Art.  10)  provides  that  the  Emperor  shall  vouchsafe 
to  them  the  protection  accorded  to  ambassadors,  while  the  members  of 
the  Reichstag  have  the  ordinary  privileges  of  members  of  a  parliament 


194  GERMANY. 

at  will  by  the  States  they  represent,  —  which  also  pay 
them  or  not  as  they  please.     The  votes  they 

Character  of  .  •  •  .1        « 

the  Buudes-  cast  are  the  votes  ot  the  States,  not   those 

rath  aud  the        _    .  .  .     . 

position  of  ot  its  representatives,  and  it  is  therefore  pro- 
its  members.  •  -i  -i  i  n  i 

vided  that  all  the  delegates  of  a  State  must 

vote  alike.  In  fact,  all  the  votes  belonging  to  a  State 
are  counted  without  reference  to  the  number  of  dele- 
gates actually  voting ; l  and  thus  the  seventeen  votes 
of  Prussia,  for  example,  can  be  cast  in  her  name  by  a 
single  representative,  just  as  at  the  meeting  of  a  pri- 
vate corporation  a  properly  authorized  agent  can  vote 
on  all  the  shares  of  stock  belonging  to  his  principal. 
The  delegates,  moreover,'  vote  according  to  the  instruc- 
tions of  their  home  l  government,  and  the  constitu- 
tion expressly  declares  'that  votes  not  instructed  shall 
not  be  counted.2  This  last  provision  has  given  rise  to 
some  comment.  It  does  not  mean  that  a  delegate  must 
produce  his  instructions  before  he  is  allowed  to  vote. 
On  the  contrary,  the  Bundesrath  appears  to  take  no 
cognizance  of  instructions,  which  may,  indeed,  be  of 
any  kind,  including  an  authority  to  vote  as  the  delegate 
thinks  best ;  and  it  is  even  asserted  that  a  vote  is  valid 
whether  it  is  in  accord  with  the  instructions  or  not.3 
The  provision  in  the  constitution  is  probably  a  mere 
survival;  but  it  has  been  suggested  that  its  object  is, 
on  the  one  hand,  to  allow  a  delegate  to  excuse  himself 
from  voting  on  the  plea  that  he  has  not  been  instructed, 
and  on  the  other  to  make  it  clear  that  a  vote  can  be 
taken,  although  the  delegates  have  not  all  received 

1  Laband,  vol.  i.  p.  223.  2  Const.  Art.  7. 

8  Laband,  vol.  i.  p.  229. 


THE  BUNDESRATH.  195 

their  instructions,  thus  taking  away  an  excuse  for  delay 
that  might  otherwise  be  urged.1 

A  delegate  is  usually  an  officer  of  the  State  he  repre- 
sents, often  one  of  its  ministers,  or  even  the  head  of  its 
cabinet,  and  in  any  case  the  ministers  of  a  State  are 
responsible  according  to  its  own  laws  for  their  instruc?- 
tions  to  the  delegates.2  In  fact,  the  ministers  are  fre- 
quently questioned  in  the  local  Landtag  or  legislature, 
about  the  instructions  they  have  given,  or  propose  to 
give ;  and  resolutions  are  sometimes  passed  in  regard  to 
them.3  If,  indeed,  the  strict  parliamentary  system 
existed  in  any  of  the  German  States,  the  cabinet  would 
no  doubt  be  held  responsible  to  the  Landtag  for  these 
instructions  as  for  every  other  act  of  the  government. 

Although  the  delegates  are  frequently  officers  of 
the  State  they  represent,  they  are  not  necessarily  even 
citizens  of  it;  and  it  is  not  uncommon  for  several  of 
the  smaller  States,  from  motives  of  economy,  to  em- 
power the  same  man  to  act  as  delegate  for  them  all 
jointly.  This  habit  grew  to  such  an  extent  that  in 
April,  1880,  when  a  stamp  act  proposed  by  the 
Chancellor  was  seriously  amended  by  a  vote  of  thirty 
to  twenty-eight,  thirteen  of  the  smaller  States  were  not 
represented  by  any  delegates  of  their  own,  their  votes 
being  cast  by  two  delegates  from  other  States.  Bis- 
marck tendered  his  resignation  in  disgust,  and  this 

1  Cf.  Robinson,  "  The  German  Bundesrath,"  Pub.  Univ.,  Pa.  Pub.  Law 
Series,  vol.  iii.  no.  1,  pp.  34-35. 

2  Laband,  vol.  i.  pp.  225-27. 

8  Interpellations,  for  example,  were  presented  and  answered  in  several 
States  in  regard  to  the  proposal  for  the  purchase  of  railroads  by  the  Em- 
pire, to  which  allusion  has  already  been  made  (Blum,  p.  167). 


196  GERMANY. 

caused  the  Bundesrath  to  reconsider  its  action  and 
vote  the  tax.  But  the  Chancellor  was  not  satisfied. 
He  complained  that  the  practice  of  substitution  de- 
prived the  Bundesrath  of  the  presence  of  members 
who  were  open  to  argument,  and  he  insisted  on  the 
adoption  of  a  rule  dividing  the  session  into  two  periods, 
in  one  of  which  the  important  matters  should  be 
considered,  and  delegates  from  all  the  States  should  be 
present,  while  the  other  should  be  devoted  to  current 
affairs,  when  the  States  might  appoint  substitutes  if 
they  pleased.  This  rule  was  adopted,  and  for  the  con- 
venience of  the  delegates  the  former  period  is  made  as 
short  as  possible.1 

The  Bundesrath  is  in  its  nature  unlike  any  other 
body  in  the  world,  and  its  peculiarities  can  be  ex- 
plained only  by  a  reference  to  the  Diet  of  the  old  Ger- 
manic Confederation.  It  is  not  an  international  con- 
ference, because  it  is  part  of  a  constitutional  system, 
and  has  power  to  enact  laws.  On  the  other  hand,  it  is 
not  a  deliberative  assembly,  because  the  delegates  vote 
according  to  instructions  from  home.  It  is  unlike  any 
other  legislative  chamber,  inasmuch  as  the  members  do 
not  enjoy  a  fixed  tenure  of  office,  and  are  not  free  to 
vote  according  to  their  personal  convictions.  Its  es- 
sential characteristics  are  that  it  represents  the  govern- 
ments of  the  States  and  not  their  people,  and  that  each 
State  is  entitled  to  a  certain  number  of  votes  which  it 
may  authorize  one  or  more  persons  to  cast  in  its  name, 
these  persons  being  its  agents,  whom  it  may  appoint, 
or  instruct  at  any  time.  The  true  conception  of 

1  Blum,  pp.  348-49;  Laband,  vol.  i.  pp.  256-57. 


THE  BUNDESRATH.  197 

the  Bundesrath,  therefore,  is  that  of  an  assembly  of 
the  sovereigns  of  the  States,  who  are  not,  indeed, 
actually  present,  but  appear  in  the  persons  of  their 
representatives. 

The  internal  organization  of  the  Bundesrath  is  in 
accord  with  its  federal  character  and  the  The  internal 
privileged  position  of  the  larger  States.  We  JHS"^ 
have  already  seen  that  the  seventeen  votes  c 
of  Prussia  are  more  than  enough  to  defeat  any  con- 
stitutional amendment,  and  that  she  is  expressly  given 
a  veto  on  all  proposals  to  change  the  laws  relating  to 
the  army  or  the  taxes.  Besides  this,  the  constitution 
declares  that  the  Emperor,  that  is,  the  King  of  Prussia, 
shall  appoint  the  Chancellor,  who  presides  over  the 
body  and  arranges  its  business,  and  through  whose 
hands  all  communications  from  the  Reichstag  and  all 
motions  and  petitions  must  pass,1  and  who  is  in  fact 
always  one  of  the  Prussian  delegates.2  But  the  con- 
stitution goes  into  much  smaller  details  in  regulating 
privileges  of  the  States,  and  prescribes  even  The  com- 
the  composition  of  the  committees  ;  for  the  nuttees- 
Germans  have  shown  a  remarkable  astuteness  in  this 
matter,  and  nowhere  else  in  the  world  can  we  find 

1  Const.  Art.  15.     Cf.  Robinson,  p.  37. 

2  Most  of  the  German  jurists  argue  that  the  Chancellor  must  always  be 
a  Prussian  delegate,  because  Art.  15  of  the  constitution  implies  that  he 
must  be  a  member  of  the  Bundesrath,  and  the  Emperor  has  power  to 
create  such  members  only  in  his  capacity  as  King  of  Prussia.     Laband, 
vol.   i.   pp.   253-£4  ;   Meyer,   Lehrbuch,  §   124  ;  Schulze,  vol.  ii.  p.  91. 
Hensel  (Die  Stellung  des  Reichskanzlers,  pp.  10-12)  denies  this  and  quotes 
Bismarck  in  his  favor.     The  Chancellor  is  authorized  to  commit  the  duty 
of  acting  as  chairman  to  a  substitute,  and  in  fact  he  rarely  presides  in 
person.     See  Dupriez,  vol.  i.  p.  522,  and  Blum,  p.  143. 


198  GERMANY. 

the  important  influence  of  committees  in  a  legislative 
body  so  thoroughly  recognized.  There  are  eight  stand- 
ing committees  of  the  Bundesrath  established  by  the 
constitution.1  The  members  of  one  of  these  —  that 
on  the  army  and  fortresses  —  are  appointed  by  the 
Emperor;  but  it  is  provided  by  the  constitution  that 
Bavaria,  and  by  military  convention  that  Saxony  and 
Wurtemberg,  shall  have  places  upon  it.  The  members 
of  the  committee  on  maritime  affairs  are  also  appointed 
by  the  Emperor;  while  the  committees  on  taxes  and 
customs,  on  trade,  on  railroads,  posts  and  telegraphs, 
on  justice,  and  on  accounts,  are  elected  every  year  by 
the  Bundesrath  itself.  On  each  of  the  last  seven 
committees,  five  States  at  least  must  be  represented, 
of  which  one  must  always  be  Prussia,  whose  member 
is  always  the  chairman.  But  here  again  we  have  an 
illustration  of  the  fact  that  the  Bundesrath  is  an 
assembly  of  diplomats  and  not  of  senators,  for  the 
practice  followed  by  the  Emperor  or  the  Bundesrath 
—  whichever  has  the  power  of  appointment  —  is  to 
designate  the  States  to  be  represented,  and  the  dele- 
gation from  each  of  those  States  chooses  one  of  its 
own  members  to  sit  on  the  committee.  The  seat  on  a 
committee  belongs,  therefore,  not  to  the  representative 
selected,  but  to  the  State  which  he  represents.  There 
is  one  other  committee  provided  for  by  the  constitu- 
tion,—  that  on  foreign  affairs.  Its  functions  are  pe- 
culiar ;  for  it  does  not  report  like  the  other  committees, 
but  its  members  listen  to  the  communications  made  to 
them  by  the  Chancellor,  and  express  the  views  of  their 

1  Const.  Art.  8. 


THE  BUNDESRATH.  199 

respective  governments  thereon.  It  is  thus  in  reality 
a  means  by  which  the  ministers  of  the  larger  States 
may  be  consulted  upon  foreign  affairs  ;  and  it  consists 
of  representatives  of  Bavaria,  Saxony,  Wurtemberg, 
and  two  other  States  designated  every  year  by  the 
Bundesrath.  As  its  only  function  is  to  consult  with 
the  Chancellor,  who  is  virtually  the  Prussian  minister 
for  foreign  affairs,  Prussia  has  no  seat  upon  it,  and 
in  her  absence  Bavaria  presides.1 

Another  illustration  of  the  federal  character  of  the 
Bundesrath  is  to  be  found  in  the  provision  Oniy  dele- 
that  on  matters  not  common  to  the  whole 
Empire,  —  such,  for  example,  as  the  excise 
on  beer,  from  which  Bavaria,  Wurtemberg, 
and  Baden  enjoy  an  exemption,  —  only  those  States 
which  are  interested  can  vote.2  There  was  at  first  a 
similar  provision  for  the  Reichstag,  but  it  was  felt  to 
be  inconsistent  with  the  spirit  of  a  national  house  of 
representatives,  and  was  repealed.3 

The  powers  of  the  Bundesrath  are  very  extensive, 
and  cover  nearly  the  whole  field  of  govern- 

T  p  i     Powers  of 

ment.  It  is  a  part  ot  the  legislature,  and  theBundes- 
every  law  requires  its  assent.4  But,  more 

1  There  are  also  three  standing  committees  not  provided  for  by  the 
constitution  :  those  on  Alsace-Lorraine,  on  the  constitution,  and  on  rules. 
All  the   standing   committees   may  sit   when  the  Bundesrath  is  not  in 
session.     On  the  subject  of  the  committees,  see  Laband,  §  31. 

2  Const.  Art.  7. 

8  Amend.  Feb.  24,  1873. 

4  Including  treaties  that  fall  within  the  domain  of  legislation,  Const. 
Art.  11.  Each  State  has  the  right  of  initiative  (Art.  7),  which  is,  of 
course,  most  frequently  used  by  Prussia. 


200  GERMANY. 

than  this,  it  has  the  first  and  last  word  on  almost  all 
the  laws,  for  the  Reichstag  has  not  succeeded 
in  making  its  right  of  initiative  in  legisktion 
yery  effective,  and  by  far  the  larger  part  of  the  statutes 
(as  well  as  the  budget)  are  prepared  and  first  discussed 
by  the  Bundesrath.  They  are  then  sent  to  the  Reich- 
stag, and  if  passed  by  that  body,  are  again  submitted 
to  the  Bundesrath  for  approval  before  they  are  pro- 
mulgated by  the  Emperor.1  The  Bundesrath  may 
therefore  be  said  to  be  not  only  a  part  of  the  legisla- 
ture, but  the  main  source  of  legislation. 

It  is  also  a  part  of  the  executive.  As  such,  it  has 
power  to  make  regulations  for  the  conduct 
of  the  administration,  and  to  issue  ordinances 
for  the  completion  of  the  laws,  so  far  as  this  power  has 
not  been  specially  lodged  by  statute  in  other  hands.2 
In  regard  to  finance  its  authority  is  even  more  exten- 
sive, for  it  has  been  given  many  of  the  functions  of  a 
chamber  of  accounts.3  It  enjoys  a  share  of  the  power 
of  appointment,  for  it  nominates  among  other  officials 
the  judges  of  the  Imperial  Court,  and  elects  the  mem- 
bers of  the  Court  of  Accounts ;  while  collectors  of 

1  Laband,  vol.  i.  p.  542  ;  Schulze,  vol.  ii.  p.  118. 

2  Const.  Art.  7.     It  exercises  this  power  with  great  freedom.     Robin- 
son, pp.  50-53.     There  is  some  difference  of  opinion  how  far  this  power 
extends.    Laband,  vol.  i.  pp.  236-37  ;  v.  Roune,  vol.  i.  pp.  213-15  ;  Arndt, 
pp.  115-19.     Arndt  has  also  published  a  treatise  on  this  subject,  Das 
Verordnungsrecht  des  Deutschen  Reiches.     It  is  also  empowered  to  decide 
upon  defects  that  appear  in  the  execution  of  the  laws.     Const.  Art.  7,  §  3. 
The  meaning  of  this  clause  has  been  much  discussed.     Laband,  vol.  i. 
pp.  238^2,  246 ;  v.  Ronne,  vol.  i.  pp.  215-16  ;  Arndt,  Verfassung  des 
Deutschen  Reiches,  p.  119  ;  Robinson,  pp.  56-59. 

3  Laband,  vol.  i.  pp.  244-46. 


THE  BUNDESRATH.  201 

taxes  and  consuls  can  be  appointed  only  with  the 
approbation  of  its  committees.1  Under  this  head  of 
executive  power  must  also  be  classed  the  provisions  by 
which  its  consent  is  required  for  a  declaration  of  war,2 
for  a  dissolution  of  the  Reichstag,3  and  for  federal 
execution  against  a  refractory  State.4  The  Bundesrath, 
moreover,  acts  in  some  ways  like  a  ministry  of  state, 
for  it  designates  one  or  more  of  its  members  to  support 
in  the  Reichstag  the  measures  it  has  approved ;  and  in 
fact  a  practice  has  grown  up  of  informing  the  Reich- 
stag during  the  progress  of  a  debate  what  amendments 
to  a  bill  the  Bundesrath  is  willing  to  accept.5  But 
the  federal  nature  of  the  Bundesrath  comes  into  play 
again  curiously  here,  for  each  of  the  members  also 
represents  in  the  Reichstag  his  particular  government, 
and  can  express  its  views,  although  contrary  to  those 
of  a  majority  of  his  colleagues.6 

The  Bundesrath  has   no  little   power  of  a  judicial 
or  semi-iudicial  nature.     It  decides  disputes 

J  .  Judicial 

between  the  imperial  and  state  governments 
about   the   interpretation  of  imperial  statutes.7     It  is 
virtually  a  court  of  appeal  in  cases  where  there  is  a 
denial  of  justice  by  a  state  court.8     It  decides  contro- 
versies between  States,  which   are   not  of   the   nature 

1  Laband,  vol.  i.  pp.  242-43. 

2  Except  on  the  ground  that  an  attack  has  been  made  on  the  territory 
of  the  Empire.    Const.  Art.  11. 

3  Const.  Art.  24. 

4  Const.  Art.  19. 

6  Laband,  vol.  i.  p.  537,  n.  5. 

6  Const.  Art.  9. 

7  This  is  deduced  from  Const.  Art.  7,  §  3.    See  page  268,  note  2,  supra. 
•  Art.  77. 


202  GERMANY. 

of  private  law,  if  appealed  to  by  one  of  the  parties ;  * 
and,  finally,  when  a  constitutional  question  arises  in  a 
State  which  has  no  tribunal  empowered  to  decide  it, 
the  Bundesrath  must  try  to  settle  it  by  mediation  if 
requested  to  do  so  by  one  of  the  parties,  or  if  this  fails, 
it  must  try  to  dispose  of  the  matter  by  imperial  legis- 
lation.2 

The  Bundesrath  has  not  only  far  more  extensive 
Special  powers  than  the  Reichstag,  but  it  has  also 
t£eVBei£de°s-  certain  privileges  that  enhance  its  prestige 
rath'  and  increase  its  authority.  Thus  the  Reich- 

stao1  cannot  be  summoned  to  meet  without  the  Bundes- 

o 

rath,  whereas  the  latter  can  sit  alone,  and  must  in  fact 
be  called  together  at  any  time  on  the  request  of  one 
third  of  its  members.3  Unlike  the  Reichstag,  moreover, 
the  order  of  business  in  the  Bundesrath  is  not  broken 
off  by  the  ending  of  the  session,  but  is  continuous,  so 
that  matters  are  taken  up  again  at  the  point  where 
they  were  left,  and  thus  its  work  is  made  far  more 
Privacy  of  effective.4  The  most  important  privilege  it 
meetings.  enjoys,  however,  is  that  of  excluding  the 
public  from  its  meetings.5  This  has  given  it  the 

1  Const.  Art.  76.     If  unfitted  to  decide  the  question,  it  can  substitute 
for  itself  some  other  body,  and  this  it  did  in  1877  in  the  case  of  the  con- 
troversy between  Prussia  and  Saxony  in  regard  to  the  Berlin-Dresden 
railroad,  selecting  the  Court  of  Appeal  of  Liibeck.     Laband,  vol.  i.  p.  249, 
note  2. 

2  Const.  Art.  76,  §  2. 
8  Const.  Arts.  13-14. 

4  Laband,  vol.  i.  p.  253. 

5  The  constitution  does  not  provide  whether  the  sessions  shall  be  public 
or  not,  and  in  fact  they  have  always  been  secret  (v.  Ronne,  vol.  i.  pp. 
210-11).     A  brief  report  of  the  matters  dealt  with  and  the  conclusions 


THE  BUNDESRATH.  203 

advantage  of  concealing  to  some  extent  its  internal 
differences,  and  has  enabled  it  to  acquire  a  reputation 
for  greater  unanimity,  and  consequently  to  exert  more 
influence  than  it  would  otherwise  possess.  Privacy, 
indeed,  would  seem  to  be  almost  as  essential  to  the 
Bundesrath,  as  to  the  cabinet  in  a  parliamentary  gov- 
ernment, or  to  an  Anglo-Saxon  jury.  It  is  easy  to 
perceive  that  the  twelve  jurors  would  seldom  agree,  if 
the  public  were  allowed  to  witness  the  mysterious 
process  of  reaching  a  verdict;  and  it  is  equally  clear 
that  harmony  in  the  Bundesrath  would  be  very  seriously 
imperiled,  if  its  galleries  were  filled  with  spectators. 
One  can  imagine  how  the  newspapers  would  gloat  over 
the  last  altercation  between  the  Chancellor  and  the 
representative  of  Bavaria  or  Saxony,  and  how  hard  it 
would  be  for  the  contending  parties  to  make  the  con- 
cessions necessary  to  effect  an  agreement  after  their 
differences  had  been  discussed  in  public.  The  work 
of  the  Bundesrath  must  be  an  unending  series  of 
compromises,  and  a  compromise  is  a  thing  with  which 
the  world  at  large  has  little  sympathy.  If,  therefore, 
the  meetings  of  the  Bundesrath  were  open,  it  would 
be  a  hotbed  of  dissensions  between  the  governments 
of  the  different  States,  instead  of  a  bond  of  union  and 
a  means  of  mutual  understanding. 

In  regard  to  the  power  and  influence  actually 
wielded  by  the  Bundesrath,  the  most  contradictory  state- 
reached  is  given  to  the  press  after  each  session,  but  the  Bundesrath  can 
vote  to  withhold  from  the  public  all  information  about  any  matter,  and 
the  rules  provide  that  the  oral  proceedings  both  in  the  Bundesrath  and 
its  committees  shall  be  kept  secret  in  all  cases.  Laband,  vol.  i.  p.  259. 


204  GERMANY. 

ments  are  made.  It  is  said  on  the  one  hand  to  be  the 
Actual  in-  most  important  body  in  the  Empire,1  and  on 
?heeBun°L-  the  other  that  it  is  a  mere  nullity  which 
moves  almost  entirely  at  the  dictation  of 
Prussia.2  Both  these  statements  are  largely  true,  for 
considered  as  an  independent  council  with  a  will  of 
its  own  the  Bundesrath  is  a  nullity,  because  it  derives 
its  impulse  exclusively  from  outside  forces ;  but,  con- 
sidered as  an  instrument  by  means  of  which  the 
governments  of  the  larger  States,  and  especially  of 
Prussia,  rule  the  nation,  it  is  probably  the  most  im- 
portant, although  the  least  conspicuous,  organ  in  the 
Empire.  The  extent  of  Prussia's  authority  in  the 
Bundesrath  cannot  be  accurately  determined,  owing  to 
the  secrecy  of  the  proceedings.  That  her  will,  or  rather 
the  will  of  the  Chancellor  acting  in  her  name,  is  the 
chief  moving  and  directing  force,  is  evident ;  but  that 
he  is  not  influenced  by  the  opinions  of  the  other  States, 
that  he  does  not  modify  his  plans  in  consequence  of 
their  objections,  or  make  compromises  with  them  on 
contested  points,  it  seems  hazardous  to  assert.  The 
members  are  usually  wise  enough  not  to  talk  about 
their  differences  in  public,  and  hence  these  are  only 
partly  known  to  the  world.  At  one  time  the  minister 
of  Wurtemberg  complained  openly  in  the  Reichstag 
that  bills  were  presented  to  the  Bundesrath  drawn  up 
in  a  complete  form  by  Prussian  officials,  and  filled 
exclusively  with  a  Prussian  spirit ; 3  but  we  know  that 

1  Robinson,  p.  43. 

2  Lebon,  pp.  145-51 ;  Dupriez,  vol.  i.  pp.  478,  517-23. 
«  See  Blum,  p.  140. 


THE  EMPEROR.  205 

this  has  not  always  been  the  case,  and  that  important 
measures  have  frequently  been  considered  and  discussed 
by  the  ministers  of  all  the  larger  States  before  they 
were  introduced  at  all.1  We  know  also  that  in  more 
than  one  instance  Bismarck  found  it  impossible  to  per- 
suade the  Bundesrath  to  adopt  his  views,2  and  that 
on  another  occasion  he  thought  a  threat  of  resigna- 
tion necessary  to  compel  submission.3  In  this  case 
the  threat  produced  the  desired  result,  but  it  may  well 
be  doubted  whether  it  would  have  the  same  effect  in 
the  mouth  of  any  one  but  the  Iron  Chancellor,  whose 
strong  will  dominated  also  the  Reichstag  and  the 
throne.4 

We  now  come  to  the  Emperor.5     The  title  seems  to 
denote  an  hereditary  sovereign  of  the  Empire,  The  Em_ 
but  from  a  strictly  legal  point  of  view  this  is  peror* 
not  his  position.     He  is  simply  the  King  of  Prussia, 
and  he  enjoys  his  imperial  prerogatives  by  virtue  of 
his  royal  office.     There  is,  in  fact,  no  imperial  crown, 
and  the  right  to  have  her  King  bear  the   title,  and 
exercise  the  functions  of  Emperor,  is  really  one  of  the 
special  privileges  of  Prussia.      The  language  of   the 
constitution  is:  "The  presidency  of  the  union  belongs 

1  This  was  notably  true  in  the  case  of  the  Gerichtsverfassunggesetz  in 
1873  (Blum,  p.  141). 

2  See  page  261,  supra. 

•  See  pages  263-64,  supra. 

4  Lebon  (p.  147)  thinks  that  Prussia  has  a  good  deal  of  influence  in 
the  appointment  of  delegates  by  the  other  States,  and  refers  to  the  case 
where  Bismarck  procured  the  recall  of  the  Bavarian  representative  in 
1880. 

5  Cf.  Const.  Arts.  11-19. 
VOL.  x. 


206  GERMANY. 

to  the  King  of  Prussia,  who  bears  the  title  of  German 
Emperor."  The  succession  is  therefore  determined 
solely  by  the  law  of  the  Prussian  Royal  House,  and  in 
case  of  incapacity  the  Regent  of  Prussia  would,  ipso 
facto,  exercise  the  functions  of  Emperor.1 

It  has  been  said  that  as  commander-in-chief  of  the 
His  power  army  and  navy  the  Emperor  has  in  theory 
ff  c^mpara-  the  personal  direction  of  military  matters,  but 

tively  small;   ^  ^    ^    ^^    he   ^    ^    ^  delegate    Qf 

the  confederated  governments,  under  the  direction  of 
the  Bundesrath;2  and  even  if  this  statement  is  not 
strictly  accurate,  it  gives  a  very  fair  idea  of  his  prerog- 
atives. He  has  charge  of  foreign  affairs,  makes  trea- 
ties subject  to  the  limitations  already  mentioned,  and 
represents  the  Empire  in  its  relation  to  other  countries, 
to  the  States,  or  to  individuals.  He  declares  war  with 
the  consent  of  the  Bundesrath,  and  carries  out  federal 
execution  against  a  State  when  it  has  been  ordered  by 
that  body.  He  summons  and  adjourns  the  Chambers, 
and  closes  their  sessions,  and  with  the  consent  of  the 
Bundesrath  he  can  dissolve  the  Reichstag.  He  pro- 
mulgates the  laws,  and  executes  them  so  far  as  their 
administration  is  in  the  hands  of  the  Empire,  subject, 
however,  to  the  important  qualification  that  most  of 
the  administrative  regulations  are  made  by  the  Bundes- 
rath. He  appoints  the  Chancellor  and  all  other  offi- 
cers, except  in  cases  where  the  Bundesrath  has  been 
given  the  right  of  appointment  or  confirmation ;  but  it 
must  be  remembered  that  the  laws  are  mainly  adminis- 
tered by  the  state  governments  under  federal  super- 

1  Laband,  vol.  i.  pp.  202^4.  2  Lebon,  pp.  154-55. 


THE   EMPEROR.  207 

vision,  and  hence  there  are  comparatively  few  federal 
officials  to  appoint.  In  short,  the  executive  power  of 
the  central  government  is  very  limited ;  and  even  that 
limited  power  is  shared  by  the  Bundesrath. 

The  Emperor  has,  therefore,  very  little  power  as  such, 
except  in  military  and  foreign  matters.  His  but  M 
authority  as  Emperor,  however,  is  vigorously  hi 
supplemented  by  his  functions  as  King  of  great* 
Prussia.  Thus  as  Emperor  he  has  no  initiative  in 
legislation ; l  and  indeed  he  is  not  represented  in  the 
Reichstag  at  all ;  for  the  Chancellor,  strictly  speaking, 
appears  there  only  as  a  member  of  the  Bundesrath.2 
But  as  King  of  Prussia  the  Emperor  has  a  complete 
initiative  by  means  of  the  Prussian  delegates  to  the 
Bundesrath  whom  he  appoints.  As  Emperor  he  has 
no  veto,  but  as  King  he  has  a  very  extensive  veto,  — 
for  it  will  be  remembered  that  the  negative  vote  of 
Prussia  in  the  Bundesrath  is  sufficient  to  defeat  any 
amendment  to  the  constitution,  or  any  proposal  to 
change  the  laws  relating  to  the  army,  the  navy,  or  the 
taxes.  His  functions  as  Emperor  and  as  The  two  sets 
King  are,  indeed,  so  interwoven  that  it  is  stately113 
very  difficult  to  distinguish  them.  As  Em-  interwoven- 
peror  he  has  supreme  command  of  the  army  and 
appoints  the  highest  officers.  As  King  of  Prussia  he 

1  Laband,  vol.   i.  p.  537.      Strictly  speaking,  the   initiative   in  the 
Bundesrath  belongs  to  the  States,  and  in  the  Reichstag  it  is  confined  to 
the  members.     Laband,  vol.  i.  p.  534. 

2  Cf.  Lebon,  pp.  155-56  ;  Dupriez,  vol.  i.  p.  534.     If,  as  the  German 
jurists  maintain,  the  Chancellor's  right  to  preside   in   the   Bundesrath 
depends  on  his  being  a  Prussian  delegate,  the  Emperor,  as  such,  is  not 
represented  in  the  Bundesrath  at  all.    See  p.  265,  n.  2,  supra. 


208  GERMANY. 

appoints  the  lower  officers,  and  has  the  general  man- 
agement of  the  troops  over  most  of  Germany.  As 
Emperor  he  instructs  the  Chancellor  to  prepare  a  bill. 
As  King  he  instructs  him  to  introduce  it  into  the 
Bundesrath,  and  directs  how  one  third  of  the  votes  of 
that  body  shall  be  cast.  Then  the  bill  is  laid  before 
the  Reichstag  in  his  name  as  Emperor,1  and  as  King 
he  directs  the  Chancellor  what  amendments  to  accept 
on  behalf  of  the  Bundesrath,  or  rather  in  behalf  of  the 
Prussian  delegation  there.  After  the  bill  has  been 
passed  and  become  a  law,  he  promulgates  it  as  Em- 
peror, and  in  most  cases  administers  it  in  Prussia  as 
King ;  and  finally  as  Emperor  he  supervises  his  own 
administration  as  King.  This  state  of  things  is  by  no 
means  so  confusing  to  the  Germans  as  might  be  sup- 
posed ;  for  it  is  not  really  a  case  of  one  man  holding 
two  distinct  offices,  but  of  the  addition  of  certain  im- 
perial functions  to  the  prerogatives  of  the  King  of 
Prussia.  The  administration  of  the  country  is  vested 
in  the  sovereigns  of  the  States,  among  whom  the  King 
of  Prussia  is  ex  officio  president;  and  until  one  has 
thoroughly  mastered  this  idea,  it  is  impossible  to  under- 
stand the  government  of  Germany.2 

There  is  no  imperial  cabinet,  and  the  only  federal 

The  Chan-     minister  is  the  Chancellor,  who  has  subordi- 

on^yfede^ai    nates  but   no  colleagues.3      The   reason   for 

this  is  to  be  found  partly  in  Bismarck's  per- 

1  Const.  Art.  16. 

2  Schulze  (Preussen,  in  Marquardsen,  pp.  33-34)  remarks  that  the  two 
offices  are  so  closely  bound  together  that  it  is  impossible  to  think  of 
them  separately. 

8  Laband,  vol.  i.  p.  348  ;  and  see  §  40. 


THE  CHANCELLOR.  209 

Bonal  peculiarities,  and  partly  in  the  nature  of  the 
ties  that  bind  Prussia  to  the  Empire.  In  the  first  place, 
Bismarck  preferred  to  stand  alone,  and  did  not  want 
to  be  hampered  by  associates.  He  had  had  experience 
enough  of  the  Prussian  cabinet,  where  each  of  the 
ministers  was  very  independent  in  the  management  of 
his  own  department,  and  he  did  not  care  to  create  for 
himself  a  similar  situation  in  imperial  matters.  After 
he  had  decided  on  a  course  of  action,  he  hated,  as  he 
said,  to  waste  his  time  and  strength  in  persuading  his 
colleagues,  and  all  their  friends  and  advisers,  that  his 
policy  was  a  wise  one.  Hence  he  would  not  hear  of 
an  imperial  cabinet.1  In  the  second  place,  he  did  not 
originally  intend  to  have  any  federal  ministers  at  all. 
According  to  his  plan  the  general  supervision  and  con- 
trol of  the  administration  was  to  be  exercised  by  the 
Bundesrath,  while  those  matters  —  such  as  military 
and  foreign  affairs  —  which  from  their  nature  must  be 
intrusted  to  a  single  man,  were  to  be  conducted  by  the 
King  of  Prussia  as  President  of  the  Confederation,  all 
others  being  left  in  the  hands  of  the  several  States. 
The  Chancellor  was  to  be  a  purely  Prussian  officer,  who 
should  receive  his  instructions  from  the  King,  and  be 
responsible  to  him  alone.2  This  plan  is  very  interest- 
ing,  because,  although  in  form  it  was  not  accepted,  in 
substance  it  presents  an  almost  exact  picture  of  the 
real  political  situation,  except  that  the  power  of  the 
Prussian  King  has  become  greater  than  was  at  first 

1  Cherbuliez,  L'Allemagne  Politique,  2d  ed.,  pp.  228-29.     Meyer,  in  his 
Grundzuge  des  Norddeutschen  Bundesrechts   (pp.  88-97),  discusses  Bis- 
marck's objections  to  a  collegiate  ministry. 

2  Lebon,  p.  152. 


210  GERMANY. 

intended.1  The  Liberals  objected  to  it,  and  under 
the  lead  of  Bennigsen  the  constituent  Reichstag 
amended  the  draft  of  the  constitution,  by  providing 
that  the  acts  of  the  President2  should  be  countersigned 
by  the  Chancellor,  who  thereby  assumed  responsibility 
for  them,  —  thus  making  the  Chancellor  a  federal  offi 
cer  responsible  to  the  nation.3  The  principle  was 
excellent,  but  has  remained  unfruitful;  for 
politically  the  Chancellor  is  not  responsible  criminally, 
to  the  and  Bismarck  refused  to  hold  himself  polit- 

.Reichstag. 

ically  responsible  to  any  one  but  the  monarch. 
He  always  insisted  that  the  motto  "  The  King  reigns 
but  does  not  govern  "  had  no  application  to  the  House 
of  Hohenzollern.  In  short,  the  parliamentary  system 
does  not  exist  in  the  Empire,  and  the  Chancellor  is  not 
forced  to  resign  on  a  hostile  vote  in  the  Reichstag.  If 
that  body  will  not  pass  one  of  his  measures,  he  gets 
on  as  well  as  he  can  without  it ;  or,  if  he  considers  the 
matter  of  vital  importance,  he  causes  the  Reichstag  to 
be  dissolved  and  takes  the  chance  of  a  new  election, 
a  course  which  up  to  this  time  has  always  been  crowned 
with  success.4 

1  It  is  a  striking  fact  that  the  high  imperial  officials  are  almost  always 
selected  from  among  the  Prussian  functionaries.     Lebon,  p.  157. 

2  This  was  in  1867,  before  the  King  of  Prussia  was  given  the  title  of 
Emperor. 

8  Const.  Art.  17.  Unlike  matters  of  military  administration,  the  acts 
of  the  Emperor  as  commander-in-chief  of  the  army  are  not  treated  as 
requiring  a  countersignature.  Schulze,  Lehrbuch,  p.  93. 

4  I  do  not  mean  that  no  imperial  official  has  ever  been  driven  from 
office  by  the  Reichstag.  The  fall  of  a  minister  may  be  occasionally 
brought  about  by  the  opposition  of  a  popular  chamber,  although  there 
is  no  general  cabinet  responsibility. 


THE  CHANCELLOR.  211 

The  Chancellor  is  at  the  head  of  the  whole  body  of 
federal  officials.  Besides  this  he  presides  in  ^  funo. 
the  Bundesrath,  and  is,  in  fact,  its  leading  tions< 
and  moving  spirit.  He  also  takes  an  active  part  in 
the  debates  in  the  Reichstag,  where  he  is  the  chief 
representative  of  the  policy  of  the  government.  But 
like  his  royal  master  he  has  a  double  nature,  and  his 
functions  are  partly  imperial  and  partly  Prussian. 
As  Chancellor  appointed  by  the  Emperor  he  is  at  the 
head  of  the  national  administration,  and  presides  in 
the  Bundesrath;  but  it  is  as  Prussian  delegate  that 
he  votes  in  that  body,  and  indeed  his  influence  there 
is  mainly  due  to  the  fact  that  he  speaks  in  the  name 
of  Prussia,  and  casts  as  he  chooses  the  twenty  votes 
which  she  controls.  In  the  Reichstag,  on  the  other 
hand,  he  nominally  appears  as  commissioner  for  the 
Bundesrath  or  as  one  of  its  Prussian  members,  while 
his  importance  is  really  due  to  his  position  as  chief 
of  the  federal  government. 

It  is  obviously  essential  to  the  Chancellor's  position 
that  he  should  be  the  leader  of  Prussia's  delegation 
in  the  Bundesrath,  and  should  be  able  to  direct  her 
imperial  policy.  For  this  reason  the  Chancellor,  ex- 
cept for  short  intermissions,  has  been  also  the  president 
of  the  Prussian  cabinet ;  and  in  fact  the  policy  of  com- 
bining the  two  offices  may  now  be  looked  upon  as 
permanent. 

The  powers  of  the  German  Chancellor  in  Bismarck's 
day  were    greater  than   those  of  any  other   Hissubsti- 
man  in  the  world,  and  his  work  and  respon-  tutes- 
sibilities  were  heavier  than  even  his  iron  frame  could 


212  GERMANY. 

bear.  In  order,  therefore,  to  relieve  him  in  part,  an 
act  was  passed  in  1878  providing  for  the  appointment 
by  the  Emperor  of  substitutes,  whenever  the  Chan- 
cellor should  declare  himself  prevented  from  doing 
his  work.  These  offices  were  expected  at  first  to  be 
temporary,  especially  that  of  Vice-Chancellor,  or  gen- 
eral substitute,  who  was  intended  to  act  only  during 
the  illness  of  the  Chancellor ;  but  with  the  increase  of 
business  they  have  become  a  permanent  necessity,  the 
Chancellor  declaring  that  he  is  prevented  from  doing 
his  work  by  the  fact  that  he  has  too  much  of  it  to  do. 
For  many  years  there  has  been  a  Vice-Chancellor  con- 
tinuously, and  it  has  been  the  habit  to  make  as  many 
of  the  Secretaries  of  State  as  possible  special  substi- 
tutes for  their  own  departments,1  appointing  them  at 
the  same  time  Prussian  delegates  to  the  Bundesrath,  in 
order  that  they  may  be  able  to  speak  both  in  that 
body  and  in  the  Eeichstag.2  The  substitutes  counter- 
sign the  acts  of  the  Emperor  in  the  Chancellor's  stead, 
but  are  nevertheless  subject  to  his  orders,  and  thus  he 
still  remains  sole  head  of  the  government,  and  is  mor- 
ally responsible  for  its  whole  policy.3 

1  Dupriez,  vol.  i.  pp.  495-97.     The  substitution  can  be  made  only  for 
those  matters  which  the  Empire  administers  directly.     Dupriez,  Ib. ;  La- 
band,  vol.  i.  p.  358. 

2  Dupriez,  vol.  i.  p.  522. 

8  Laband,  vol.  i.  p.  359 ;  Dupriez,  vol.  i.  pp.  497-99.  The  federal 
administration  began  in  a  very  simple  form,  for  there  was  only  one  chan- 
cery office  (Bundeskanzleramt),  divided  into  three  sections,  the  Prussian 
officials  doing  in  some  departments  a  good  deal  of  federal  work.  But  as 
the  number  of  affairs  to  be  attended  to  has  grown,  the  federal  machinery 
has  become  more  elaborate.  The  general  chancery  office  has  disap- 
peared, and  there  are  now  many  separate  departments,  each  with  a  secre- 


THE  COURTS  OF  LAW.  213 

The  judicial  branch  of  the  imperial  government 
remains  to  be  considered.  Justice  is  admin-  The  iudi_ 
istered  in  the  first  instance  by  the  state  ciary' 
courts;  but  curiously  enough,  the  organization  of 
these  courts  is  regulated  by  imperial  statutes.1  Their 
rules  of  practice  are  also  derived  from  the  same  source, 
for  the  federal  government  has  enacted  general  codes 
of  civil  and  criminal  procedure,  which  apply  to  the 
state  tribunals.2  It  has,  moreover,  enacted  a  univer- 
sal criminal  code  and  a  commercial  code,  and  has  just 
added  to  these  a  general  code  of  civil  law;  so  that 
there  are  in  each  State  a  similar  series  of  courts  or- 
ganized on  an  imperial  plan  and  expounding  imperial 
laws  in  accordance  with  imperial  forms  of  procedure, 
but  whose  members  are  appointed  by  the  local  sov- 
ereign and  render  their  decisions  in  his  name. 

Apart  from  administrative  and  consular  courts,  there 
is  only  one  federal  tribunal,  called  the  Reichs-  The  Reicha_ 
gericht,  or  Court  of  the  Empire.  It  has  gericht' 
original  jurisdiction  in  cases  of  treason  against  the 
Empire,  and  appellate  jurisdiction  from  the  federal 
consular  courts,  and  from  the  state  courts  on  questions 
of  imperial  law.3  It  is  to  be  observed,  therefore,  that 

fury  of  state,  or  president  of  a  bureau,  at  its  head.  Such  are  the  Interior, 
Foreign  Affairs,  Navy,  Post  Office,  Justice,  Treasury,  Railroads,  Invalid 
Funds,  Debt  Commission,  and  Imperial  Bank.  Laband,  §  41. 

1  The  Gerichtsverfassunggesetz  of  Jan.  27,  1877.    Laband,  §  86,  and  see 
§  81.     This  is  true  only  of  the  ordinary  courts  of  law,  the  subject  of 
administrative  courts  being  left  for  the  most  part  in  the  discretion  of  the 
several  States.     See  Laband,  vol.  ii.  p.  368. 

2  The  Civilprozessordnung  of  Jan.  30,  1877.     The  Strafprozessordnung 
of  Feb.  1,  1877. 

«  Laband,  §  84> 


214  GERMANY. 

with  the  completion  of  the  system  of  national  codes 
this  year,  the  imperial  tribunal  has  become  a  general 
court  of  error  in  all  cases  arising  under  the  ordinary 
civil  or  criminal  law.1 

While  speaking  of  the  judicial  branch  of  the  govern- 
Powerof  nient,  it  is  interesting  to  notice  that  there 
Shoi°drts  nas  been  a  great  deal  of  discussion  among 
tmconsti-  German  publicists  over  the  question  whether 
a  court  of  law  can  inquire  into  the  constitu- 
tionality of  a  statute.  Some  writers  maintain  that  it 
can  do  so,2  while  others  insist  that  the  promulgation  by 
the  Emperor  settles  conclusively  the  validity  of  a  law.3 
The  problem  is  not,  of  course,  confined  to  the  Empire, 
but  may  arise  in  the  States  whenever  a  legislature 
passes  a  law  that  violates  the  state  constitution ;  the 
solution  depending  ultimately  on  the  question  whether 

1  A  State  which  has  several  courts  of  error  can  create  a  supreme  court 
of  appeal  and   confer  upon   it  the   appellate   civil  jurisdiction   of   the 
Reichsgericht,  but  this  has  been  done  by  Bavaria  alone.    Laband,  vol. 
ii.  pp.  365-66. 

2  v.  Ronne,  vol.  ii.  pp.  62-63.   This  was  maintained  as  a  general  principle 
by  Robert  von  Mohl,  in  his  Staatsrecht,  Volkerrecht  u.  Politik  (1860),  1.  3. 

8  E.  g.  Labaud,  vol.  i.  pp.  551-58  ;  Zorn,  Staatsrecht  des  Deutschen 
Reiches,  §  7,  iii.  Gneist,  who  is  commonly  cited  in  favor  of  the  authority 
of  the  court,  carne  to  the  conclusion,  in  his  Soil  der  Richter  auch  iiber  die 
Frage  zu  befinden  haben,  ob  ein  Gesetz  verfassungsmassig  zu  Stande  gekom- 
men,  that  the  courts  can  decide  whether  an  ordinance  issued  by  the 
executive  is  within  its  constitutional  powers,  and  whether  a  law  has 
received  the  assent  of  the  chambers  as  required  by  the  constitution,  but 
that  they  cannot  inquire  whether  the  substance  of  a  law  passed  in 
proper  form  violates  the  provisions  of  that  instrument. 

The  constitution  of  Prussia  declares  expressly  (Art.  106)  that  statutes 
and  ordinances  are  binding  if  promulgated  in  the  form  prescribed  by  law, 
and  that  the  legality  of  royal  ordinances  regularly  issued  can  be  examined 
only  by  the  chambers. 


UNCONSTITUTIONAL  LAWS.  215 

the  constitution  shall  be  treated  as  a  law  of  superior 
obligation,  or  whether  it  shall  be  regarded  merely  as 
establishing  a  rule  for  the  guidance  of  the  legislator. 

The  matter,  however,  is  one  in  which  practice  is  far 
more  important  than  abstract  theory,  and  it  is  certain 
that  the  courts  have  not  in  fact  exercised  any  general 
power  of  refusing  to  apply  statutes  on  constitutional 
grounds.  The  late  Brinton  Coxe,  in  his  compilation 
on  "  Judicial  Power  and  Unconstitutional  Legislation," 
has  collected  the  most  important  German  cases  on  the 
subject.1  In  one  of  these  the  Hanseatic  Court  of 
Appeal  held  in  1875  that  a  statute  enacted  in  Bremen, 
which  deprived  a  person  of  property  without  compen- 
sation, was  in  conflict  with  the  constitution  of  the  city, 
and  that  the  court  must  regard  the  latter  as  a  binding 
law  and  refuse  to  apply  the  statute.2  Eight  years  later 
the  doctrine  of  this  case  was  expressly  overruled  by 
the  federal  court  in  another  suit  that  arose  in  Bremen 
upon  a  similar  state  of  facts,  the  court  declaring  that 
the  constitutional  provision  was  to  be  understood  only 
as  a  rule  for  the  legislative  power  to  interpret.3  Since 
that  time  no  German  tribunal  appears  to  have  held  a 
statute  unconstitutional,  but  in  1889  the  federal  court 
remarked,  in  the  course  of  an  opinion,  that  the  question 
whether  the  judiciary  had  a  right  to  examine  the  con- 
stitutionality of  an  imperial  law  was  still  an  open  one, 
although  the  weight  of  authority  was  in  the  affirmative.* 

1  Ch.  ix. 

2  Gabade  v.  Bremen,  Seuff,  Arch.,  vol.  xxxii.  No.  101. 

8  K.  and  Others  v.  Dyke  Board  of  Niedervieland,  Dec.  of  the  Reichs- 
gericht,  vol.  ix.  p.  233. 
*  Dec.  of  the  Reichsgericht,  vol.  xxiv.  p.  3. 


216  GERMANY. 

As  the  question  is  the  same  for  imperial  and  state  laws, 
the  remark  would  seem  to  imply  a  change  of  opinion  on 
the  part  of  the  court.  It  is  not  at  all  likely,  however, 
that  the  Reichsgericht  will  have  the  courage  of  its  con- 
victions, and  venture  to  disregard  statutes  passed  by 
the  legislature  of  the  Empire. 

Even  in  a  federal  system  such  a  power  could  be 
effectively  used  only  where  the  central  government  was 
exceedingly  weak,1  or  where  the  authority  of  the  courts 
had  been  raised  to  a  pitch  like  that  which  it  has  ac- 
quired in  Anglo-Saxon  countries  from  the  prolonged 
judicial  centralization  of  England.  It  would,  indeed, 
seem  absurd  to  draw  a  distinction  between  public  and 
private  law,  as  is  commonly  done  in  Germany,  and  deny 
to  the  courts  the  right  to  consider  the  legality  of  an 
administrative  ordinance  on  the  ground  that  it  falls 
into  the  province  of  public  law,  and  at  the  same  time 
give  them  power  to  pass  on  the  validity  of  a  statute 
enacted  by  the  legislature. 

To  sum  up  what  has  been  said,  the  German  Empire 
Character  of  *s  a  federal  government  of  a  peculiar  type,  in 
fede?aT^a8-  which  legislative  centralization  is  combined 
with  administrative  decentralization.  The 
centre  of  gravity  is  to  be  found  in  the  body  repre- 
senting the  governments  of  the  several  States,  and 
here  Prussia  has  a  controlling  influence,  and  a  veto 
on  the  most  important  matters.  In  fact,  the  Con- 
federation is  not  a  union  of  States  with  equal  rights, 
but  rather  an  association  of  privileged  members,  so 

1  That  the  courts  cannot  exercise  such  a  power  in  a  centralized  State, 
see  the  writer's  Essays  on  Government,  pp.  40-45. 


SYNOPSIS  OF  THE  SYSTEM.  217 

contrived  that  Prussia  has  the  general  management, 
subject  only  to  a  limited  restraint  by  her  associates. 
And  herein  there  is  a  marked  contrast  between  the 
American  and  German  federal  systems.  That  of  the 
United  States  is  based  on  the  equality  of  the  members ; 
and  a  decided  preponderance  on  the  part  of  any  one 
State  would  destroy  the  character  of  the  union.  That 
of  Germany,  on  the  contrary,  is  organized  on  a  plan 
that  can  work  successfully  only  in  case  one  member 
is  strong  enough  to  take  the  lead,  and  keep  the  main 
guidance  in  its  own  hands;1  for  if  the  States  were 
nearly  equal,  their  mutual  jealousy  would  effectually 
prevent  the  sovereign  of  any  one  of  them  from  infus- 
ing a  real  vitality  into  the  office  of  Emperor,  while  the 
control  of  the  Bundesrath  over  the  administration 
would  paralyze  the  executive  unless  that  body  derived 
its  impulse  from  a  single  source. 

a  Cf.  Dupriez,  vol.  i.  pp.  475-77. 


"~ 


tk^i^^t 


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PRINTED  BY  H.  O.  HOUGHTON  & 
CAMBRIDGE,  MASS. 


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